Dec 5, 2016 09:44

7 yrs ago

36 viewers *

English term

Cathalina Depoorter (X)

Belgium

16 questions

Shall/will

English Law/Patents Law: Contract(s) Terms and conditions

I was wondering which word to use when writing/translating terms and conditions. I often see companies that only use "shall" whereas other companies only use "will" or a combination of both. Some even use only the present tense.
Could anyone tell me what is correct?
Thank you!

Responses

5 +14	Shall	Neil Crockford
5 -3	will	W Schouten

References

A minefield, except in legal documents

B D Finch

Change log

Dec 5, 2016 10:25: Edith Kelly changed "Language pair" from "Dutch to English" to "English"

Dec 5, 2016 18:11: Catharine Cellier-Smart changed "Level" from "PRO" to "Non-PRO"

Dec 10, 2016 10:26: acetran changed "Level" from "Non-PRO" to "PRO"

Votes to reclassify question as PRO/non-PRO:

PRO (4): AllegroTrans, Christine Andersen, Cilian O'Tuama, acetran

Non-PRO (3): writeaway, Yvonne Gallagher, Catharine Cellier-Smart

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Discussion

Björn Vrooman Dec 6, 2016: PS I found this part about Scottish use (+issues with shall): "This can be illustrated by the Scottish use of these two words, which gives to them the opposite meanings from those given to them by English usage. The story is told of a Scot who fell accidentally into the Thames and, fearing that he would drown, shouted: 'Help! I will drown. No one shall save me'. A passing Englishman heard these words and, concluding that the Scot intended to drown and did not wish to be saved, walked away and left him to drown." http://www.law-office.co.uk/art_shall-1.htm [Edit: Yes, it's part of B D Finch's link as well] In any case, thank you for your answer. My objection stands - considering what you, Charles and Tony said, I must assume that there is some kind of UK-US divide here, not only geographically. Frankly, I wish the asker had provided some examples. Thank you all for the interesting discussion.
B D Finch Dec 6, 2016: @Bjorn Re your examples: "Landlord will clean and maintain..." > How very sweet of him/her! However, I'd feel safer if this was a duty rather than just good intentions. "Where there is no commercial imperative for the buyer to take the product, it may be advisable for contracts containing take-or-pay provisions to make clear that the buyer 'may' order quantities of the product, rather than imposing any obligation on the buyer that it 'will' or 'shall' place minimum orders" > "If the buyer has no commercial need to take the product and contracts contain take-or-pay provisions, it may be advisable to word contracts to clearly indicate that the buyer may order [agreed?] quantities, rather than that they must order a minimum quantity." :)
Björn Vrooman Dec 6, 2016: @B D Finch Thank you and yes, I was only talking about the US. The United States Plain Writing Act of 2010 may seem even more cringeworthy: "In fact, the word ‘shall’ is a perfect example. Deemed as too stuffy and somewhat ancient, ‘shall’ will be replaced with the more affable ‘should.’ Some other terms that are off limits include 'precluded,' 'heretofore,' 'in accordance with,' and the austerely rigid, 'herein.'" http://blog.dictionary.com/plain-words/ CAN: "When Ontario’s Interpretation Act became Part 6 of the Legislation Act, 2006, the old provision '"shall" denotes obligation and "may" denotes option' was omitted as misleading." http://www.slaw.ca/2011/05/26/shall-we-keep-using-shall-or-m... What about the sentence below? "Landlord will clean and maintain..." Or: "Where there is no commercial imperative for the buyer to take the product, it may be advisable for contracts containing take-or-pay provisions to make clear that the buyer 'may' order quantities of the product, rather than imposing any obligation on the buyer that it 'will' or 'shall' place minimum orders" http://www.cms-lawnow.com/ealerts/2008/04/takeorpay-provisio...
B D Finch Dec 6, 2016: @Bjorn I will continue to use "shall" as I only translate legal documents for use in England and Wales or for a British readership. "Shall" is generally more polite than "must" when imposing a duty and doesn't imply an objective impossibility of failure to comply. E.g. "passengers shall board before the boat sails" (we'll be very annoyed and charge a lots of money for taking latecomers by helicopter), vs "passengers must board before the boat sails" (arrive late and you've had it).
Björn Vrooman Dec 6, 2016: @Charles Pt.2 Thanks for your answer. I once had a discussion with a retired German judge about "shall deemed to be." In German, you could use "gilt" (is considered to be). Second, I suspect you are right. You'll find a lot of that in translations. Although you could also google something like "the machine shall" (without passive voice, ofc) - you'll find a lot of devices thought to have great artificial intelligence. I hope others may still chime in: "If the present or future tense we are considering translating as 'shall' expresses a duty or obligation, is 'will' really a viable alternative? That is, if we use it, are we failing to reflect an obligation inherent in the source text?" - "Will" as creating a promise, i.e., if it not merely denotes a future event. 1st link: "Landlord will clean and maintain all common areas." Is that going to be misunderstood? Whether to favor must over shall: May be preferred with inanimate objects - even in the passive voice ("The petition must be filed..."). See: "The US Courts are eliminating 'shall' in favor of 'must' in their Rules of Procedure." http://www.plainlanguage.gov/howto/guidelines/FederalPLGuide... So, yes, you could do that.
Charles Davis Dec 6, 2016: Examples They're all wrong of course, but they're symptomatic of what I've just been referring to. Only somebody who doesn't use "shall" in ordinary speech and doesn't really know what it means could have written those things.
Charles Davis Dec 6, 2016: On a personal note, I am struck by the fact that part of the argument about "shall" in US legal drafting is the fact that it isn't part of contemporary American English, so Americans don't have a clear sense of how it is used (or at least used to be used) in British (at least southern English) usage. But I grew up with it, and saying "I shall" to express futurity and "you shall" to express obligation comes naturally to me; it's taken me some time to get used to saying "I will" for the simple future, so as not to be out of step with contemporary usage and sound pedantic.
Björn Vrooman Dec 6, 2016: Examples "[...]drafters frequently use shall to describe discretionary terms.[...]A sign at my grandmother’s condominium reads: 'Residents shall use the pool from 9:00 a.m. to 7:00 p.m.' Egads, that sounds exhausting! I suspect the writer meant may instead of shall. "Just as commonly, drafters use shall to connote futurity when other words will do.[...]'Tenant’s failure to pay rent shall constitute a material breach and this Agreement shall terminate.' Both parts of that sentence refer to future events; will more aptly describes the situation than shall. Moreover, the writer surely didn’t intend to impose a duty on an agreement. "Stranger still, definitions in contracts are often written as shalls.[...]'Interest Rate shall mean a rate per annum of 9 percent.'[...]First, writing the definition this way could suggest the word will take on the meaning upon the occurrence of some future event.[...]Second, because shall imposes a duty when correctly interpreted, the writer has created a false imperative by obligating the poor, hapless interest rate to mean something." https://www.osbar.org/publications/bulletin/12febmar/legalwr...
Charles Davis Dec 6, 2016: @Björn I can answer your last question as regards Spanish. The future tense is used in all the cases we're concerned with here. "Shall be deemed to" is "será considerado" or "se considerará", depending on what follows. To take an example at random, there are no fewer than fifteen cases of these expressions in the Spanish data protection regulations: https://www.boe.es/buscar/act.php?id=BOE-A-2008-979
Björn Vrooman Dec 6, 2016: @Charles To your points: 1) The question is if the word has been "abused" over and over and not even a judge of the US Supreme Court can point you to a clear definition, then what's the benefit? To be clear: I am only talking narrowly about US law. I don't even pretend to know how you handle this in the UK (although I think the warning about inanimate objects seems true here too). Here's another view from a UK lawyer: https://ipdraughts.wordpress.com/2011/09/23/shall-or-will-in... He basically confirms that US lawyers are told to use "will," but that he is more comfortable with Ken Adams' approach. However, he also says: "In any event, we find it difficult to believe that any sane English judge would interpret a contract wrongly based on the drafter’s choice of shall or will." https://ipdraughts.wordpress.com/2011/09/23/shall-or-will-in... Ken Adams: "The initial test for disciplined use of shall is whether you can in your mind replace it with 'has [or have] a duty to.'" http://www.adamsdrafting.com/shall-will-must-exchange-emails... "shall" in EU legal usage: http://ucrel.lancs.ac.uk/publications/CL2003/CL2001 conferen...
Björn Vrooman Dec 6, 2016: @all To be clear, Charles, AllegroTrans, and Tony, you did try to elucidate what you believe are the differences between the two words. I am rather - if I may use the word - flabbergasted to see some of the other statements commenters made. E.g. " I tend to use shall too for contracts for this reason." - What's that supposed to mean? You're rolling the dice each time the word comes up in a contract? Or this sweeping statement: "I always use shall too, unless the client insists otherwise, in which case they are wrong..." - So a mult-million dollar company with its own legal department doesn't know what it's doing, but a translator does? Case in point (we're talking about T&Cs): https://www.amazon.com/gp/help/customer/display.html?nodeId=... https://www.amazon.com/gp/help/customer/display.html?nodeId=... How many instances of "shall" and "will" do you see? The only "shall" in there is part of the severance clause, which - incidentally - contains another translation challenge that I wanted to ask you and Tony about: "shall be deemed to." It's a funny thing to translate into German (basically, you don't), so my question is what you do in French or Spanish with it.
Charles Davis Dec 6, 2016: @Björn Very interesting points and references; thank you. I don't want to prolong the discussion, but supposing one wants to follow Bryan Garner (eliminate "shall" completely) rather than Ken Adams (use it properly and eliminate its misuse), I find myself wondering: a) If the present or future tense we are considering translating as "shall" expresses a duty or obligation, is "will" really a viable alternative? That is, if we use it, are we failing to reflect an obligation inherent in the source text? b) When we decide that an obligation is clearly expressed in the ST, and are considering "shall" on that account, can we always put "must" instead? In other words, is Tony right to say that "in legal language, a fine distinction is often made between 'must' and 'shall'": does such a distinction really exist?
Björn Vrooman Dec 6, 2016: One common mistake: "For the sake of consistency and to avoid possibly giving offence, use shall unless the sentence's subject is an inanimate object (in other words, where the subject is not a person or a body on which a duty can be imposed)" http://ccbb.casselsbrock.com/Doc/Legal_Drafting_Tip__Use_of_... Well, unless you want to end up at: http://www.biu.ac.il/JH/Parasha/eng/reeh/dag.html Thus, the question is what we would call a "Fangfrage" in German or a catch-22. There is no definite answer to "could anyone tell me what is correct?"
Björn Vrooman Dec 6, 2016: @AllegroTrans, Neil, Tony, and Cathalina While I can agree to some points made here, there isn't a clear-cut explanation (agree with Neil; not that sure about Tony's example). E.g.: "There is nothing old-fashioned about 'shall' and it's clear that you haven't read many legal contracts" - That isn't the point. At least in American English, there's a clear shift away from "shall," for good reason: https://law.utexas.edu/faculty/wschiess/legalwriting/2005/05... https://www.faa.gov/about/initiatives/plain_language/article... http://www.plainlanguage.gov/howto/wordsuggestions/shallmust... http://www.economist.com/blogs/johnson/2011/05/legal_writing http://www.abajournal.com/magazine/article/shall_we_abandon_... Yes, I can pull up another 100 references, if need be. As the first link puts it, "shall is the most misused word in all of legal language." Bryan Garner even recommended deleting every instance of "shall" in a document. Quote: "As Justice Ruth Bader Ginsburg remarked in a majority opinion: 'though shall generally means must, legal writers sometimes use, or misuse, shall to mean should, will or even may.' [...] If it’s an ordinary bilateral agreement, will is perfectly adequate."
AllegroTrans Dec 5, 2016: Asker The jury is still out on this question, although I do agree with TonyM's excellent synopsis - I translate contracts on a regular basis and follow the same guidelines Here's a starter: http://english.stackexchange.com/questions/3389/shall-and-wi... Personally, I avoid using the present tense as contract terms imply a promise to do something in the future.
Charlesp Dec 5, 2016: and there are alternatives to "shall" esp. when the use of shall looks a bit odd.
Neil Crockford Dec 5, 2016: It's not mentioned as an alternative by the Asker, but NEVER use "should". A cautionary tale : The governing body of Lawn Bowls redrafted the Laws of the Game in "Plain English" and earned a Crystal Mark from the Plain English Campaign. This wording used "should" to indicate mandatory actions. Because, to most people, "should" indicated something advisory and not prescriptive, the Laws had to be re-written again, replacing "should" with "must". I still think "shall" would have been better.
Tony M Dec 5, 2016: @ Asker (2) And finally, certain EN documents do indeed use the simple present (in the same way as FR does); being of the old school, I find this reads awkwardly, and sometimes even ambiguously, but that's just my personal style preference. When choosing between the prescriptive 'shall' or the simple present (at least, when I'm translating from FR, where the confusion can arise), I usually try to analyse from whose point of view the statemet is being made, and thence, whether it could / should be prescriptive or not. The following example might help, imagined in the context of a Project Owner issuing a call for tenders to Suppliers: [Project Owner] prints tender documents on white paper. They will be sent out in the first quarter of 2017. The Supplier shall ensure that all the papers demanded are returned with their submission." In the first instance, it is the Project Owner that is doing the prescribing, hence the use of 'shall' referring to themselves would be illogical. In the second instance, it is a simple statement of a future event. In the third instance, the Project Owner is laying down a specific prescription with which the Supplier must comply.
Tony M Dec 5, 2016: @ Asker As ever, it is not a simple either / or situation — quite apart from the everyday use to form the future tense, in legal and certain other formal documents, 'will' and 'shall' have quite distinct meanings and uses. In some instances, 'will' is used to express a simple future tense: "Tender documents will be sent out by Registered Mail." — expressing a simple future intention. When I am translating from FR, this is usually indicated by the use of the future tense in the source language, as one would expect. HOWEVER, 'shall' can be used where the intended meaning is specifically prescriptive — there is an element of 'must' about it, though in legal language, a fine distinction is often made between 'must' and 'shall' (many writers sadly seem to miss this point!) So for example, in a set of tender specifications, we might find "All fire doors shall be painted red." When transalting from FR, this is often required to translate a simple present, which can be confusing where a simple present is sometimes actually what is intended! Hence it is very important to be extremely sensitive to the source language usage, and also to the logic of what is being said.

Responses

+14

11 mins

Neil Crockford

710 answers

Native in English & English

Specializes in field

Selected

Shall

Both are possible, but "shall", which here has a sense of obligation and not merely of futurity, is stronger and clearer.

Peer comment(s):

agree	Marijke Singer : I tend to use shall too for contracts for this reason. 4 mins
agree	Edith Kelly 28 mins
agree	danya 34 mins
agree	Tony M : Where the intenion is prescriptive, then 'shall' is correct; where it is simply expressing a future tense, then you should use 'will' — and in a legal context, it's very important to differentiate between those two! 42 mins
agree	Kirsten Bodart : I always use shall too, unless the client insists otherwise, in which case they are wrong... 48 mins
agree	B D Finch 1 hr
agree	Charles Davis : Yes, when it is prescriptive. Tony's point is important, though; since you are often translating a future tense (from Spanish in my case) you have to consider in each case whether the ST expresses obligation or futurity and use shall or will accordingly. 1 hr
agree	Yasutomo Kanazawa 2 hrs
agree	writeaway : oeuf corse 2 hrs
agree	Mikhail Korolev 2 hrs
agree	Yvonne Gallagher : with Charles and Tony...need to distinguish 3 hrs
agree	AllegroTrans : "shall" for obligations, "will" for something that will happen as a matter of course, or as a favour etc. 9 hrs
agree	Cilian O'Tuama 13 hrs
agree	jccantrell : When I was in the technical requirements writing business, 'shall' indicated something that must be done to satisfy the contract, 'will' was used as something to aim for but not achieving it would not jeopardize the contract. 1 day 6 hrs
disagree	Charlesp : if the choice is between shall or will, that is one story. 1 day 8 hrs
agree	acetran 5 days

4 KudoZ points awarded for this answer. Comment: "Thank you all for participating in the discussion! I see that there is a lot of disagreement regarding this subject. Before this discussion I was not so sure whether to use "shall", as I was afraid that the text would become too old-fashioned that way. I now know that was because I often saw for ex. general conditions in which only "shall" was used and to be honest, that makes it indeed look a bit "weird" (not really pleasant to read). I think Tony M describes very well in only a few words how we should use both "shall" and "will". In any case we should not simply use "shall" or "will" randomly, there really is a difference between the two!"

-3

4 mins

W Schouten

United Kingdom

190 answers

Native in English & English

Specializes in field

will

shall is a bit old fashioned

Peer comment(s):

neutral	danya : not in the legal context 41 mins
neutral	Tony M : As Danya says, there is an important difference in a legal context between the simple future tense and the prescriptive use of 'shall'. It would be quite wrong to replace 'shall' with 'will' in situations where it is prescriptive. 48 mins
neutral	Kirsten Bodart : Sorry no. Unless strictly future, 'shall' expresses obligation. 57 mins
neutral	writeaway : 100% sure? Where did you hear/read shall is a bit old-fashioned? It's much simpler in Dutch. Zal no matter what...... 3 hrs
disagree	AllegroTrans : There is nothing old-fashioned about "shall" and it's clear that you haven't read many legal contracts 10 hrs
disagree	Cilian O'Tuama : in such contexts, shall implies mandatory 13 hrs
agree	philgoddard : This is perfectly OK, and increasingly common in plain-English contracts. I use it. 19 hrs
disagree	B D Finch : Better risk being thought "old-fashioned" than inaccurate or sloppy when translating a legal document. "Will" could be open to challenge as only meaning intention, not duty. 1 day 7 hrs
disagree	acetran : disagree 5 days

Reference comments

1 hr

B D Finch

France

5406 answers

Native in English & English

Specializes in field

Reference:

A minefield, except in legal documents

The well known story of the Scotsman drowning in the Thames and the Englishman drowning in the Clyde points out that it all depends where the speaker/writer and their audience are from. However, with legal documents, Neil is right. Here's an attempt at explanation:

Reference:

https://goo.gl/iDlYMy

Peer comments on this reference comment:

agree	Cilian O'Tuama : Nice. FWIW, "shall" was not part of my vernacular growing up. 12 hrs
	Thanks Cilian.
agree	Björn Vrooman : Fascinated by the chart on that page, I had somehow overlooked that you had already pointed to the Thames example. My apologies. I think your link is a good example of why "shall" is disappearing in AmE, even in legal documents. But that's North America. 1 day 8 hrs

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Shall/will

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Shall

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Shall/will

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A minefield, except in legal documents

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Glossary entry (derived from question below)

English term or phrase:

Shall/will

English answer:

Shall

English term

Shall/will

Discussion

Responses

Shall

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will

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Reference comments

A minefield, except in legal documents

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