October 23, 2021

Bazar Lead

Just Law & Legal

Canceling The Word “Shall” In Leases, Contracts And Legal Forms – Real Estate and Construction

The majority of today’s leases, contracts and legal forms
are riddled with the word shall. Shall is a word beloved
by many, but it may be time to move away from shall. The
use of shall can take parties down the long and arduous
path of litigation. Even though shall has been used for
generations as a word to create a mandatory obligation, the word
actually contains layers of ambiguity. Shall can be
interpreted to mean must, may, will or
even should. In countless instances, shall is
used throughout the same document, but with multiple
interpretations.1

Consider this sentence: “The lease term shall
commence on the commencement, which shall be the later
of…” Now, replace shall with any of those other
verbs mentioned above.

  1. Must: The lease term must commence on the
    commencement, which must be the later of…

  2. Will: The lease term will commence on the
    commencement, which will be the later of…

  3. May: The lease term may commence on the commencement,
    which may be the later of…

  4. Should: The lease term should commence on the
    commencement, which should be the later of…

  5. Hybrid: The lease term must commence on the
    commencement, which will be the later of…

In the sentence above, every time shall is substituted
with must, will, may, should or
a combination of the words, the sentence still makes sense, and it
is impossible to determine which interpretation the author
intended. Unless the reader is expressly told that shall
will be interpreted as mandatory – rather than precatory,
meaning that the drafter is simply making a recommendation or even
a wish – it is ambiguous and can lead to litigation. In 1995,
for instance, the U.S. Supreme Court issued a decision in
Gutierrez de Martinez v. Lamagno that under certain
contexts, shall could be construed as may.2 The
decision does not imply that shall always means
may, but rather that unless expressly defined, context
determines whether shall is mandatory or precatory.3

Because the meaning of shall depends on context, even
25 years after the U.S. Supreme Court issued its decision,
litigation continues to exist on what shall means. Through
the years, many opinions have interpreted shall to mean
must,4 while others have interpreted it
to mean may or will.5 Continuing to use
the word shall, especially if it is not clearly defined,
will result in unnecessary litigation. In fact, canceling
shall has already begun. The Federal Rules of Civil
Procedure and The Federal Rules of Evidence, for example, revised
their rules to delete all uses of the word shall to avoid
ambiguity.6 The advisory notes explain that
“the word shall can mean must, may,
or something else, depending on context.”7

Later, finding support in the federal rules, Congress also
issued the Plain
Writing Act of 2010
(the Act), which required all federal
agencies to follow the federal plain language guidelines and use
must instead of shall when imposing
requirements.8 The federal plain language
guidelines state that the word “must is the clearest
way to convey to your audience that they have to do
something.”9 On the other hand,
shall can indicate either an obligation or a
prediction.”10 Now, to comply with the Act,
multiple agencies have handbooks requiring the use of must
instead of shall when imposing requirements.11 As
with the federal government, transitioning from the word
shall will enhance clarity in legal writings.

Conclusion

Despite the ambiguity of the word shall, the majority
of agreements, contracts and legal forms continue to use the word
shall. Instead, these documents should be drafted or
revised to use must, may, will or
should. Unfortunately, without knowledgeable legal
guidance, eliminating shall altogether in existing
documents and templates will require an examination of innumerable
documents and a close analysis each time the word shall
appears in a document to find the correct meaning and replace it
with the appropriate word. Alternatively, global corrective
language can be inserted in existing documents to require that all
uses of the word shall are interpreted as imperative and
not permissive.

Footnotes

1.
Bryan Garner, Legal Writing in Plain English, at 125-128
(2001).

2.
Gutierrez de Martinez v. Lamagno, 515 U.S. 417
(1995).

3.
See id.

4. See,
e.g., Bryan Garner, Legal Writing in Plain English, at 125-128
(2001)
(citing West Wis, Ry, v. Foley, 94 U.S. 100,
103 (1877); Gutierrez de Martinez v Lamagno, 515 U.S. 417,
434 (1877) (adding that “certain of the Federal Rules use the
word ‘shall’ to authorize, but not require, judicial
action,” citing Fed. R. Civ. P. 16(e) and Fed. R. Crim. P.
11(b)).

5. See,
e.g., Bryan Garner, Legal Writing in Plain English, at 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. 711, 712 (1990).

6. Fed.
R. Evid. 1 advisory committee’s note; Fed. R. Civ. P. 1
advisory committee’s note (“The restyled rules minimize
the use of inherently ambiguous words. For example, the word
“shall” can mean “must,” “may,” or
something else, depending on context. The potential for confusion
is exacerbated by the fact that “shall” is no longer
generally used in spoken or clearly written English. The restyled
rules replace “shall” with “must,”
“may,” or “should,” depending on which one the
context and established interpretation make correct in each
rule.”).

7.
Id.

8. The
Federal Plain Writing Act of 2010, Pub. L. 111–274
(2010).

9. The
Plain Language Action and Information Network, Federal Plain
Language Guidelines
(May 2011).

10.
Id.

11.
Office of the Federal Register, Drafting Legal Documents,
Principles of Clear Writing
(Aug. 15, 2016), https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html;
Federal Aviation Administration, FAA Writing Standards,
Order No. 1000.36 (March 13, 2003).

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.