You shall go to the ball, Cinderella!
This posting is prompted by seeing this recent article, on a non-legal, grammar blog, about the distinction between shall and will, including the use of these words in contractual obligations.
To focus the discussion, here are some examples of contractual obligations:
- The Consultant shall provide the Services to the Client.
- The Consultant will provide the Services to the Client.
- The Consultant [undertakes / agrees] to provide the Services to the Client.
- The Consultant covenants to provide the Services to the Client.
Conventional practice among most English commercial solicitors is to use version 1 above. Shall is almost always used (in preference to will) to express contractual obligations in the template agreements of City [of London] law firms.
Sometimes, variants on version 3 appear, but they take up more words than version 1 and add nothing to the legal effect under English law, so should probably be avoided as unnecessary verbiage.
In real property transactions in England and Wales, covenant has a special meaning, in that a negative covenant given by a purchaser of land may be binding on subsequent owners of the land.
This is an exception to the usual principle that contractual obligations bind only the parties to the contract.
In ordinary commercial contracts, contractual obligations, however described, are only binding on the parties to the contract.
Technically, it seems that the term covenant is an undertaking given in a contract under seal (nowadays, a contract made as a deed). Conveyances of land must be made as deeds, so one can see why obligations in relation to the land, as described above, have been called covenants.
Covenants are sometimes encountered in ordinary commercial contracts. Most typically, non-compete obligations, eg in employment contracts, are described as covenants. Our understanding is that the use of the term covenant in this situation adds nothing to the legal effect, but does make the obligation sound more imposing.
- Coming back to shall and will, the article referred to above mentions briefly a distinction that appeared in English language school books until a few generations ago:
- (a) for the future tense, it is or was considered correct to say, I shall, you will, he/she/it will, and
- (b) for the emphatic mood the words are reversed and it goes I will, you shall, he/she/it shall.
Contracts are usually written in the third person singular, as in our four examples above, hence the correct word to use is shall. As far as we know, the use of shall in English contracts is based entirely on the application of this rule of grammar.
The Difference Between “will” and “shall”
Reader Eric wonders about the uses of will and shall.
When do you use “will” and “shall?” I know that [they] mean the same thing, but I would like to know when to use them in the correct grammatical sense.
In modern English will and shall are helping verbs. They are used with other verbs, but lack conjugations of their own.
Both are signs of the future tense.
The old Walsh English Handbook that I used in high school gives this rule for forming the future:
Use shall in the first person and will in the second and third persons for the simple future tense:
I shall sing this afternoon.
You will succeed.
He will stay at home
My observations suggest that shall is rarely used by American speakers.
The two words existed as separate verbs in Old English, the form of English spoken from 450-1150 C.E.
- The verb willan meant “wish, be willing, be about to.”
- The verb sculan (pronounced [shu-lan], had the meanings “be obliged to, have to, must, be destined to, be supposed to.”
- In modern usage traces of the old meanings persist for speakers who use both forms.
- Will can imply volition or intention, while shall can imply necessity:
I will scale Mount Everest. (“and no one can stop me!”)
You shall take the garbage out before you do anything else. (“You have no choice, Junior!”)
A second element enters into the use of shall and will.
As a matter of courtesy, a difference exists according to whether the verb is used with a first or second person subject. Which to use depends upon the relationship between speakers.
Parents, teachers, employers, and staff sergeants are within their rights to tell someone “You shall complete this assignment by 9 p.m.” Such a construction offers no alternative. It is the same as saying “You must complete this assignment.”
In speaking to an equal, however, the choice is left up to the other person:
I shall drive to Tulsa today. You will follow on Tuesday. (It’s still up to you.)
Here’s a frequently quoted joke that illustrates the consequences of using shall and will incorrectly:
A foreign tourist was swimming in an English lake. Taken by cramps, he began to sink. He called out for help: “Attention! Attention! I will drown and no one shall save me!”
Many people were within earshot, but, being well-brought up Englishmen and women, they honored his wishes and permitted him to drown.
"Shall" Versus "Will" in Business Contracts—An Exchange of Emails – Adams on Contract Drafting
[Updated March 2, 2015: For my most recent take on this subject, see this article.]
I’ve previously written in this blog about why I recommend that one use shall in a disciplined manner rather than throw it under a bus. Discussion of this topic features prominently in chapter 2 of MSCD, as well as in my October 2007 NYLJ article.
But it’s such a fundamental topic that it bears revisiting periodically, so I’ll share with you emails that I exchanged over the past few days with John Gillies and Kathleen Hogan, practice support lawyers at the Toronto law firm Cassels Brock.
Here’s an email I received from Kathleen:
I believe you’ve conducted drafting seminars here at Cassels Brock, though before I arrived in a KM capacity in August.
We’ve just released a Boilerplate Agreement to the firm. In compiling it, we of course relied on MSCD. We’ve gotten mostly good feedback.
However, your recent post about letting you know where we disagree with you has sparked this contact.
There’s been some discussion about our adoption of your analysis of using “shall” to create an obligation. One alternative favored is using “will,” on the grounds that “shall” is archaic. Can you comment?
I am not sure I agree that “will” is any different from “shall” in referring to future time. Doesn’t “shall” necessarily mean “in the future”? If the drafter does not mean in the future, then wouldn’t he or she use an active present tense?
Thoughts appreciated. Thanks.
And here’s my reply:
Kathleen: Thank you for your message. This subject remains dear to my heart.
It’s clear that shall has largely disappeared from everyday English; its role is now mostly limited to questions in the first person that seek direction or suggest weakly, such as Shall we dance?
When should I use "shall" versus "will"?
In some situations will and shall may point to different sources of motivation to act in a particular way—namely, an internal source versus an external source. As an example (in the third-person singular) of the compulsory aspect of shall versus the volitional aspect of will, consider this exchange from Henry James's short story “Covering End”:
“And what has she [Cora Prodmore, Mr. Prodmore's daughter],” he [Mr. Prodmore] appealed, “expected me to give up? What but the desire of my heart and the dream of my life? Captain Yule announced to me but a few minutes since his intention to offer her his hand.”
She [Mrs. Gracedew] faced him on it as over the table. “Well, if he does, I think he’ll simply find—”
“Find what?” They looked at each other hard.
“Why, that she won’t have it.”
Oh, Mr. Prodmore now sprang up. “She will!”
“She won’t!” Mrs. Gracedew more distinctly repeated.
“She shall!” returned her adversary, making for the staircase with the evident sense of where reinforcement might be most required.
Question:What is your opinion on “shall” vs. “will” in contracts?These words have different meanings but both can be used effectively in contract drafting as long as you're careful about your usage.
Did you know that “shall” is the most misused word in all of legal language? It is. In the current edition of Words and Phrases, “shall” alone is followed by 109 pages of case squibs, and “shall” phrases cover 45 more pages. Yet its misuse is one of the most heavily repeated errors in all of law.
Here's where lawyers go wrong: When “shall” is used to describe a status, to describe future actions, or to seemingly impose an obligation on an inanimate object, it's being used incorrectly. For example, all of these are wrong:
- Status: “Full capacity” shall have the following meaning . . .
- Future action: If . . . then the contract price shall be increased . . .
- Faulty imposing of obligation: The remaining oil shall be sold by lessee . . .
To correctly use “shall,” confine it to the meaning “has a duty to” and use it to impose a duty on a capable actor. Bryan A. Garner, A Dictionary of Modern Legal Usage 940–941 (2d ed., Oxford U. Press 1995). Here's how:
- Lessee shall sell the remaining oil . . .
In other words–
- Lessee [an actor capable of carrying out an obligation] shall [has a duty to] sell the remaining oil . . .
Some suggest that lawyers are incapable of using “shall” correctly, so we ought to banish it entirely. Michèle M. Asprey, Shall Must Go, 3 Scribes J. Leg. Writing 79 (1992). One recommendation is to use “must” instead. Of course, you cannot search and replace every “shall” with “must.” Scrutinize each use carefully.
You can use “will” to create a promise–a contractual obligation. See Bryan A. Garner, A Dictionary of Modern Legal Usage 941-942 (2d ed., Oxford U. Press 1995). When used in this way, “will” is not merely stating a future event, it is creating a promise to perform:
- Landlord will clean and maintain all common areas.
You could use “shall” for the other party's obligations and “will” for your client’s obligations, though the effect of these words should be the same. The difference reflects only the impact on the reader.
In most basic contracts, I recommend using “will” to create obligations, as long as you are careful to be sure any given usage can't be read as merely describing future events. I'm generally against “shall” because it is harder to use correctly and it is archaic. But not everyone agrees with me. Kenneth A. Adams, A Manual of Style for Contract Drafting 24-25 (ABA 2004). Adams prefers using “shall” as long as it's used correctly.
See also Joseph Kimble, The Many Misuses of Shall, 3 Scribes J. Leg. Writing 61 (1992)
Shall vs. will–which is best?
“When should I use ‘shall’ instead of ‘will’? ” I confess that this reader question stumped me. I can’t remember ever using the word “shall.” The question spurred me to do some research on the topic of shall vs. will.
First person vs. second or third person
A Grammar Girl post on “‘Shall’ Versus ‘Will‘” says that British and sticklers’ rules say that
- “…you use shall to indicate the future if you are using first person (I or we) and if you are using second or third person (you, he, she, or they).”
- “The British traditionally use shall to express determination or intention on the part of the speaker or someone other than the subject of the verb.”
- Lawyers and orators may use shall differently.
My old Associated Press Stylebook picks up the theme of determination, seen in Grammar Girl’s second point.
It says “Use shall to express determination: We shall overcome. You and he shall stay.”
A different take on shall vs. will from Garner
Garner’s Modern American Usage includes a table showing when to use shall vs. will to show “simple futurity” vs. “determination, promise, or command.” The table distinguishes between first person vs. second and third person. However, author Bryan Garner says, “with only minor exceptions, will has become the universal word to express futurity.”
Here are the two exceptions, according to Garner:
(1) interrogative sentences requesting permission or agreement ; (2) legal documents, in which shall purportedly imposes a duty .
However, Garner notes that lawyers are using “shall” less.
SHALL vs. WILL | Grammar
The rule below about shall/will also applies to should/would, as described at the end.
People may sometimes tell you that there is no difference between shall and will, or even that today nobody uses shall (except in offers such as Shall I call a taxi?). This is not really true.
The difference between shall and will is often hidden by the fact that we usually contract them in speaking with 'll. But the difference does exist.
The truth is that there are two conjugations for the verb will:
|I||shall||I shall be in London tomorrow.||I'll|
|you||will||You will see a large building on the left.||You'll|
|he, she, it||will||He will be wearing blue.||He'll|
|we||shall||We shall not be there when you arrive.||We shan't|
|you||will||You will find his office on the 7th floor.||You'll|
|they||will||They will arrive late.||They'll|
|I||will||I will do everything possible to help.||I'll|
|you||shall||You shall be sorry for this.||You'll|
|he, she, it||shall||It shall be done.||It'll|
|we||will||We will not interfere.||We won't|
|you||shall||You shall do as you're told.||You'll|
|they||shall||They shall give one month's notice.||They'll|
It is true that this difference is not universally recognized. However, let those who make assertions such as “Americans never use 'shall'” peruse a good US English dictionary, or many US legal documents which often contain phrases such as:
- Each party shall give one month's notice in writing in the event of termination.
Note that exactly the same rule applies in the case of should and would. It is perfectly normal, and somewhat more elegant, to write, for example:
- I should be grateful if you would kindly send me your latest catalogue.