James D. Robb is Associate Dean of External Affairs and General Counsel at WMU-Cooley Law School.
How often do you find the word “shall” in a contract or legislation you are reviewing? Have you wondered what precisely that word means? Or what the parties or legislature actually intended? Is “shall” a promise? Is it a command? Is it a declaration of determination? Is it a permissive term? Is its use clear to you?
Does it mean “must” as in a contractual promise?
Seller shall maintain the property in good condition until closing.
Does it mean “will” as in a statement of future intent?
I shall stop at the store on the way home from work.
Is it a statement of determination?
I shall return!
Does it mean “may”?
No pedestrian shall enter the intersection against the red traffic light.
Is it an invitation?
Shall we go?
Obviously, the word “shall” has many meanings depending on the context. And often that context is clear. But consider what happens if the word shows up in a contract and is construed by a reviewing court to be ambiguous.
In fact, sloppy use of the word “shall” in a contract can be disastrous because a court that finds it ambiguous will construe it against the drafter. Our own Distinguished Professor Emeritus Joe Kimble, a leader of the plain language movement and one of the deans of America’s legal writing instructors, has pointed out how drafters use “shall” mindlessly. He has warned us that courts “read it any which way.” A recent important case bears him out, and even quotes him on the point.
In Orthopedic Specialists v. Allstate Insurance Company, No. 4D14-287 (Fla. Dist. Ct. App.) (August 19, 2015), the Florida Court of Appeals held the word “shall” to be inherently unclear and ambiguous, particularly when used in the phrase “shall be subject to.” The court then construed the word against the insurer that wrote a policy for personal injury protection. Professor Kimble’s warning is quoted with approval in footnote 3 of the concurring opinion.
My abridged version of the Oxford Universal English Dictionary, published in 1937, devotes 23 column inches─more than two thirds of an entire page of blindingly tiny print─to the definition of “shall.” That alone might suggest the word can be troublesome for those who need to draft with precision.
On a larger scale, Professor Kimble’s great book, Writing for Dollars, Writing to Please, demonstrates the undue cost and expense associated with forbidding, verbose, and unclear writing. I recommend it to you. In performing your own legal work, take his advice: be precise. Write clearly and to the point. And when tempted to use “shall,” think again. Perhaps the words “must,” “will,” or “may” will more clearly, and more safely, express your intent.
We welcome your comments by replying below.
2 responses to “Prof. Joe Kimble Is Right: In Legal Drafting Use the Word “Shall” at Your Peril”
Great article! A fertile source of “shalls” are the Bylaws of AAA of Michigan, which are shot full of them. (The Bylaws are reprinted annually in AAA Living magazine.) Here are a few of the more nonsensical ones: “The Automobile Club of Michigan shall be a members’ club, supported by members’ subscriptions.” (Art. III) Meaning “must be?” or “will be in the future?” Since it’s been around for some time, what’s wrong with “is” a members’ club? Here’s Art. IV, sec. 6: Application for General Membership shall be accompanied by the payment of the annual dues. The Club’s acceptance of such application shall cause the applicant to become a General Member and …” “Shall cause?” Could there be a more awkward way to welcome new members? And while I’m at it, “such” should go the way of “said” and “same” when used as referents: to the dustbin.
Bravo, Professor Stockmeyer.