We did a search within a few form leases and a few form mortgages. Here’s what was found: 433 (landlord’s form office lease); 588 (tenant’s form retail lease); 988 (lender’s loan agreement); 405 (landlord’s form retail lease); and (only) 88 (lender’s form of simple mortgage).
In case readers don’t know, while our legal document world has a love affair with “shall,” normal people ordinarily prefer “will.” Here’s what one stylebook writer says about this:
Shall – will. The helping verb shall has largely given over to the verb will in all but the most formal writing and speech. The following rules reflect both ordinary and formal usage: a. To express simple future time: … I will be glad to help you plan the program. … (2) In formal circumstances use shall with the first person (I, we) and will with the second and third person (you, he, she, they). I shall be glad to answer all inquiries properly. … b. To indicate determination, promise, desire, choice, or threat: (1) In ordinary cases use will with all three persons. (2) In formal circumstances use will for the first person … and shall for the second and third persons… . c. To indicate willingness (to be willing to, to be agreeable to) in both ordinary and formal circumstances, use will with all persons. [William A. Sabin, The Gregg Reference Manual, Eight Edition.]
Does that sound like the way shall is commonly used by we who write the songs? No, of course not.
To writers of legal documents, the word “shall” sounds like a commandment: “Thou shall (shalt) not … .” But sometimes it is just a prediction: “Thou shall be punished.” And, sometimes, “shall” is a declaration: “The terms defined below shall have the respective meanings … .” Here is “shall” as a reward: “If Tenant [behaves], Tenant, shall have quiet and peaceful possession of the Premises.” What about this use of “shall” – “Landlord shall assist Tenant in engineering the appropriate size … .”?
Try this game yourself. Pick your favorite document and search for the word “shall.” Each time you encounter the word, ask yourself: “What does it mean in this particular usage? Would there be a better word?”
What has Ruminations been doing since it had this Zen revelation (a “satori”)? Well, we’ve rediscovered words like, “must,” “will,” “may,” “should,” and even “ .” [Try “ ” with “The terms defined below shall have the respective meanings … .” What you get is: “The terms defined below have the respective meanings … .” WOW! Fascinating. What was that “shall” doing there in the first place?]
Do you remember this one: “If Tenant [behaves], Tenant, shall have quiet and peaceful possession of the Premises.” Try substituting “will” in place of “shall.” How does that sound?
Here’s an example where “shall” is used twice in two different senses: “Within 30 days after the Commencement Date, if Tenant is not in default and has taken possession and occupancy of the Premises, Landlord shall pay Tenant $100,000 which shall be used by Tenant for the payment of its lease obligations on its lease of the premises it is moving from.” How about: “Within 30 days after the Commencement Date, if Tenant is not in default and has taken possession and occupancy of the Premises, Landlord will pay Tenant $100,000 which must be used by Tenant for the payment of its lease obligations on its lease of the premises it is moving from.”?
If you’d like, take a break now and return to your favorite document and play a game. Replace every single “shall” with the word you really meant to use. We think it will feel good.
Not convinced? Do you really still think “shall” is a word of commandment, an imperative? Then, we shall tell you about a recent Wisconsin case interpreting this very popular word. If anyone thinks we crafters of transactional documents are wed to that belief (i.e., “shall” is an imperative), pity those who write our laws. For them, “shall” is a commandment from up high. In its opinion filed on December 9, 2014, the Court of Appeals of Wisconsin, in Bank of America, N.A. v. Prissel, which can be seen by clicking HERE, had to interpret “shall” in the following statute:
[T]he sale of such mortgaged premises shall be made upon the expiration of 6 months from the date when such judgment is entered. Notice of the time and place of sale shall be given under ss. 815.31 and 846.16 within such 6- month period except that first printing of a copy of such notice in a newspaper shall not be made less than 4 months after the date when such judgment is entered. [We supplied the underlining.]
Pretty forceful, those three “shalls” are, don’t you think?
So, what happens if the foreclosing lender doesn’t obey the commandments and doesn’t publish the notices within the required time periods? What happens if it doesn’t foreclose within 6 months? In the Wisconsin case, the borrower argued: “Out of time; out of luck. The lender can’t hold a valid foreclosure sale and can’t satisfy the foreclosure judgment it had obtained.” This became a question of law (one of statutory interpretation). The butler did it; the court let the bank conduct its foreclosure sale. Those wed to the (not so true) imperative sense of “shall,” might ask why?
It should come as no surprise to faithful readers that the court walked its way through the same rules of interpretation for this statute as Ruminations has covered over and over for interpreting agreements. It started with the “statutory” version of a key principle:
“When interpreting a statute, our objective ‘is to determine what the statute means so that it may be given its full, proper, and intended meaning.’ … ‘Our analysis begins with the plain language of the statute. … ‘Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical of special definitional meaning.’” “In addition, statutory language must be interpreted ‘in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.’”
[Ruminations can’t get enough of that kind of talk. Just think, if people wrote what they meant, we might never again see courts just pump those rules out for all to see.]
The borrower in this case saw this as being pretty black and white. It asserted that when the Wisconsin legislature wrote “shall,” the legislature unambiguously indicated that a lender was required to abide by the timeline. It cited “the general rule” that the word “shall” “is presumed to be mandatory when used in a statute. [We supplied the underlining.]
The lender countered that, as used in the foreclosure statute, use of the word “shall” was “directory,” and therefore it was not required to hold a foreclosure sale immediately upon the end of the 6 month period. The court, in a footnote, had an additional take, one that we might all ponder as we write our own agreements. It asked, “How soon after the expiration” of the 6 month period must the sale be held?
We are simple people and want to get away from the “imperative” and the “directory.” When we hear “imperative,” we think “must.” When we hear “directory,” we hear “should.”
If it were our intention to Ruminate about statutory construction, we’d go on to summarize the court’s analysis. We’re going to respect the time of most of our readers by offering the following: “Those readers who are interested in taking that journey through a court’s mind shall (no, make that, “may”) click the link we embedded near the top of this posting and go right to the source, the court’s opinion itself.
Closely analogous to this Wisconsin statute is our industry’s penchant for writing: “So and so SHALL send notice to Counterpart within 10 days.” Don’t we mean, “MUST” send notice within 10 days and would we be happy if a court thought we meant “SHOULD” send notice within 10 days?
Given that “shall” can mean “must” or “will” or “should” or “may” or really nothing at all, let’s join together and ban the word from our documents and “say what we mean; mean what we say.” We shall all feel better. But, that’s not a commandment.
Slowly, we’ve been converting our documents to change all of those “shalls” to what we really meant. You might want to try that yourselves.