Parties to a construction contract must take care to understand both the clear and ordinary meaning and the legal meaning of the words used. Bryan Garner, a lawyer and editor of Black`s Law Dictionary, wrote: “In most legal instruments, violates the presumption of consistency. This is why shall is one of the most treated words in the English language. 11 Office of the Federal Register, Drafting Legal Documents, Clear Writing Principles (August 15, 2016), www.archives.gov/federal-register/write/legal-docs/clear-writing.html; Federal Aviation Administration, FAA Writing Standards, Order No. 1000.36 (March 13, 2003). In classical language, shall is used in the first person (me, us) to indicate a wish or a “simple future”. To say that I will be or that we will be indicates an element of intention, will or choice. So I`ll probably be there, but I never will. Because the meaning of shall depends on the context, even 25 years after the USA. The Supreme Court has made its decision, there is still a legal dispute over what is supposed to mean. Over the years, many opinions have interpreted “shall” to mean “shall”,4 while others have interpreted it as “may” or “will”.5 The subsequent use of the word, especially if it is not clearly defined, is intended to lead to unnecessary litigation. In fact, the cancellation has already begun. The Federal Rules of Civil Procedure and the Federal Rules of Evidence, for example, revised their rules to remove all uses of the word shall to avoid ambiguity.6 The notes state that “the word should, may or may mean something else, depending on the context.” 7 In legal form, the will is generally used to express the positive or negative obligations of a third party: the buyer assumes all responsibilities.
Here, shall is synonymous with “is obliged” or “has a duty to do so” – command or threat at work. There are arguments that, if used consistently, would work: it`s hard to see a big difference when you say the buyer takes all the responsibility – only that sounds a little more authoritarian. But convention (and traditional grammar) are on the side of “should” here. Difference is largely idiomatic – that is, it is subject to more instinct and feeling than fixed grammatical rules. Its use has also changed over the centuries, varying between North America and the United Kingdom. What follows is distillation, as best I can. Your email address will not be published. Required fields are marked * Some common uses of the word “may” in the legal sense are: Almost all jurisdictions have decided that the word “shall” is confusing because it can also mean “may, will or shall”. Legal reference works such as the Federal Rules of Civil Procedure no longer use the word “shall.” Even the Supreme Court has ruled that if the word “shall” appears in legislation, it means “may.” Most leases, contracts and legal forms today are interspersed with the word must. Soll is a word loved by many, but it may be time to move away from obligation. The use of shall can lead the parties down the long and arduous path of litigation.
Although the word “shall” has been used for generations to create a binding commitment, the word actually contains layers of ambiguity. Soll can be interpreted in such a way that it must, can, wants or even should. In countless cases, shall is used throughout the document, but with multiple interpretations.1 In North America, we and I will be heard less often in the sense of the “mere future,” leaving the will both to fulfill this function and to express a stronger intention. This leads to ambiguities because we lose the possible distinction between will and duty. (And sometimes the classic will work for us, like in We Will Overcome.) A reader`s suggestion, this. Good idea, even if it`s more of a contractual wording or a point of opinion than a general legal writing tip. Despite the ambiguity of the word, the word is destined to continue to be used in the majority of agreements, contracts and legal forms. Instead, these documents should be drafted or revised in such a way that they must, can, will be or should. Unfortunately, the complete elimination of existing documents and templates without expert legal advice requires a review of countless documents and accurate analysis each time the word appears in a document to find the correct meaning and replace it with the appropriate word. Alternatively, a global proofreading language can be inserted into existing documents to require that all uses of the word be interpreted as mandatory and not permissive. Later, when it found support in federal rules, Congress also enacted the Plain Writing Act of 2010 (the Act), which required all federal agencies to follow federal plain language guidelines and use “must” instead of “must” when imposing requirements.8 Federal plain language guidelines state that the word “shall be the clearest means of: To make their audience understand that they have to do something.” 9 On the other hand, `is intended to indicate either an obligation or a prediction`. 10 In order to comply with the law, many jurisdictions now have manuals that require the use of must instead of must when imposing requirements.11 As with the federal government, the transition from the word shall will increase clarity in legal drafting.
Churchill`s finer rhetorical moments, however, are probably best left alone (with Georges Clemenceau`s June 1918 speech, in which he went with “will” (“I will fight in Paris”). In the above sentence, each time is replaced by must, will, can, should, or a combination of words, the sentence still makes sense, and it is impossible to determine what interpretation the author intended. Unless the reader is explicitly told that it should be interpreted as mandatory – and not as specific, i.e. the author is only making a recommendation or even a request – it is ambiguous and can give rise to litigation. In 1995, for example, the United States Supreme Court issued a decision in Gutierrez de Martinez v. Lamagno, which could be interpreted as “may” in some contexts.2 The decision does not imply that “shall” always means “may”, but rather that the context determines whether “must” and “must not” are words of obligation. “Must” is the only word that imposes a legal obligation on your readers to tell them that something is mandatory. Also, “can`t” are the only words you can use to say something is forbidden. Who says that and why? What about the “must”? It is interesting to note that English legislation avoids the use of “will” or “shall” in favour of “must”. “Must” always suggests an absolute obligation. Save my name, email address, and website in this browser for the next time I comment. For example, when parties use the word “shall” in their agreement, they generally understand that the stated obligation is mandatory.
Or if the parties use the word “may” in their contract, performance is permitted or optional given the clear meaning of the word. If you have any comments or questions on this matter, please contact: Here are some of the reasons why these documents require us to use the word “shall” when we mean “mandatory”: 6 Fed. R. Evid. 1 Note by the Advisory Committee; Fed. R. Civ. P. 1 Advisory Committee Note (“The revised rules minimize the use of inherently ambiguous words. For example, depending on the context, the word “shall” may mean “shall”, “may” or something else. The risk of confusion is exacerbated by the fact that “shall” is no longer commonly used in spoken or clearly written English. The revised rules replace “shall” with “shall”, “may” or “should”, depending on the context and the interpretation set out in each rule is correct. »).
However, inconsistent wording means that traditional interpretation cannot be invoked; The terms should be read in the context of the overall agreement, which applies the usual (and reasonable) principles: The word “may” is an expression of the possibility, a permissive decision, to act or not, and generally implies some degree of discretion. This contrasts with the word “shall”, which is generally used to indicate a mandatory provision. As explained in this Texas case, the word “may” in a written instrument is generally interpreted as permissive, but may be interpreted as mandatory depending on the context in which it is used. As a general rule, it is only if it is necessary to give effect to the clear intention of the legislature that it can be interpreted in a compelling manner. What should you say when someone says, “Should it be a perfectly good word?” Always agree with them because they are right! But in your next breath, be sure to say, “Yes, should is a perfectly good word, but it`s not a perfectly good obligation word.” There is also with this type of construction: if you want to leave a message, please do it according to the sound. Not fake, but moldy – or maybe chic to be chic. If can always replace should in these cases. Better yet, please leave a message. 5 See, for example, Bryan Garner, Legal Writing in Plain English, pp. 125-128 (2001) (citing Railroad Co. v. Hetch, 95 U.S.
168, 170 (1877); Scott v. United States, 436 U.S. 128, 146 (1978) (Brennan, J., dissenting); United States v. Montalvo-Murillo, 495 U.S.