One of the wonders of English is the rich nuances our language permits.
That richness, combined with modern usage - whether legal or otherwise - also creates confusion. A major issue for drafters and interpreters of legal documents is the use and abuse of mandatory and permissive verbs.
Mandatory verbs are those where one party to a contract has an obligation or duty to do something. Failure to comply with a mandatory provision is a breach of contract.
Permissive verbs are those where one party to a contract has the power or right to do something. There is often no remedy for failing to comply with a permissive provision.
Some of the more common words are:
The US Plain Language website states that the verb 'shall' has been "so corrupted by misuse that it has no firm meaning". It also states that there are 76 pages in a legal reference book setting out cases that interpret ‘shall’.
Bryan Garner in his Dictionary of Modern English Usage (2001 edition) says: "courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa."
So ‘shall’ can:
This confusion is noted in the Lawyerist blog which proposes that lawyers should help root out this antiquated, confusing, oft-litigated bit of legalese by eliminating it at every chance you get.
The blog continues: “ ‘Shall’, due to its multiple meanings, creates ambiguity that greatly increases the likelihood of disputes about what a sentence means. That is exactly what we are paid to avoid.”
So the next time you pick up your fountain pen (or start typing onto a computer) think carefully before committing the sin of habit. And decide to strike a blow against legalese and raise the flag for clarity in legal writing.
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