English-speaking legal-writing experts agree that the use of “shall” by English-speaking lawyers is a mess. They also agree that the irregular, inconsistent and unclear use of “shall” is leading to misunderstanding and unnecessary litigation.
Despite their agreement about the nature of the problem, the experts are divided on what to do about it.
Some (including Bryan Garner, Peter Butt and Richard Castle) feel that “shall” has outlived its usefulness, and should be abandoned. This approach is sometimes called the “ABC rule”, with “ABC” standing for “Australian, British and Canadian”. This is a little misleading, because some Americans also advocate this rule. Recently, UK legislation has been drafted with “must”, not “shall”.
Some feel that “shall” may be retained in drafted text as long as it is carefully used only to indicate an obligation, i.e. in the sense of “must” or “has a duty to”. This is essentially how “shall” is supposed to be used in the English versions of EU legislation, i.e. in “commands”.
Other experts (including Kenneth Adams) feel that “shall” can still play a useful role in distinguishing between obligations (“must”) and duties (“shall”). Inanimate things are the subject of obligations; duty holders are the subject of duties. So proponents of this “American rule” would write “the shares must be sold” and “the shareholders shall sell the shares”. Adams says this distinction is useful but also justifies this position primarily by pointing out that corporate lawyers are reluctant to let “shall” go, and legal-writing experts lose credibility when they try to convince them to do so. The only realistic option for legal-drafting experts is to find a way to use “shall” that makes sense.
The ABC rule is best
I recommend the ABC rule for four reasons.
First, the case law in the US, the UK and elsewhere has so clearly identified the danger of using “shall” that this issue cannot be safely ignored. It’s ironic, given the common-law origins of the “shall” convention, but a common-law court may not agree that “shall” indicates a duty or obligation. I reject the argument that “shall is usefully vague”. “Shall is dangerously unclear” is more like it.
Second, “shall” is a seriously problematic convention in English legal drafting that results in misunderstanding and litigation. It is being abandoned by many English-speaking drafters for that reason. It doesn’t make sense for Dutch and other European lawyers to be using “shall” when the English-speaking world increasingly is not.
Third, the distinction between “must” and “has a duty to” — no matter how useful it may be — is artificial and largely theoretical. In the case law and drafted text produced by the English-speaking world, this distinction is not drawn. (However, I am quite sympathetic to those who rely on this option because they worry about telling the corporate bar not to use “shall”.)
Fourth, and most importantly, there is no Dutch equivalent of “shall” meaning either “must” or “has a duty to”. To my mind, it makes little sense for Dutch lawyers to use “shall” when it has no equivalent in legal Dutch. Even if “shall” were a logical and problem-free convention (which it is not), it’s difficult to see why it would be used by Dutch lawyers when it has no legal Dutch equivalent. To me, this is the crucial point. Zullen indicates the future, so it is translated as “will”. Moeten and dienen indicate obligation, so they are translated as “must”. What is the Dutch equivalent of “shall”? Practising law in one’s second language is difficult enough without unnecessarily introducing confusing and non-literal conventions like “shall”.
Draft in the present tense
Remember that “shall” in properly drafted text is not the same as “will”. Well drafted text is generally not framed in the future verb tense. (Sometimes the future does belong in drafted text, but that occurs rarely. And sometimes drafters do use “will” or zullen in the sense of “must”, but that is an unusual and unconventional use of “will” and zullen, not the future.) Drafted text is ordinarily drafted in the present tense. So it should be “means”, not “shall mean”. “Is governed by Dutch law”, not “shall be governed by Dutch law”.
This problem will still be with us for a while
As pointed out above, there are English-speaking drafters who still find “shall” appealing for various reasons. They defend the convention, despite the case law and warnings from the experts. So “shall” is not going to go away soon.
This is not the place to look in detail at the problem of legalese, but “shall” is a primary example of it. Given the case law and the wide-scale abandonment of “shall”, retaining this outmoded convention for its own sake is becoming increasingly difficult to justify. The argument that “shall” should be used simply because it “is a long-standing legal English convention”, “sounds English” or “sounds more legal” seems to ignore the cases.
It is a pity that the European Union still uses “shall” in its legislation. It has never properly been explained to me why the EU retains this very English convention. The EU drafting guidelines are currently out of step with modern thinking on this. It will be interesting to see whether the EU and its drafters are flexible enough to eventually let “shall” go.
In conclusion, “shall” has no equivalent in legal Dutch, so there is no need to use it in your English drafting. Also, whenever you come across “shall”, check carefully to verify whether the “shall” is being used in the sense of “is”, “will”, “may” or “must”. You may be surprised.
Greg Korbee (Originally published May 2014. Republished March 2019.)
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