OPENING STATEMENT: Should You Use “Shall”?

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

In legal drafting, should you worry about using shall? Consider three examples:

• Subcontractor shall comply with all Contractor safety rules.

• “Seller” as used in this contract shall mean Oaker Services.

• Members of the panel shall be selected by the commissioner.

Although shall is generally harmless in those examples, taking more care when using shall would be a good thing for three reasons.

1. SHALL CAN BE AMBIGUOUS.

Courts have construed shall to mean both “must” (mandatory) and “may.” Here are two statements about the meaning of shall from the Texas Supreme Court:

• “We agree, of course, that ‘shall’ is mandatory language.” S.C. v. M.B., 650 S.W.3d 428, 443 (Tex. 2022).

• “The word ‘shall’ in a statute may be and often is held as merely directory and as having been used in the sense of ‘may.’” Thomas v. Groebl, 212 S.W.2d 625, 630 (Tex. 1948).

These conflicting meanings of shall have prompted scholarly criticism in articles like “The Many Misuses of Shall,” “Shall We Proceed?” and “Shall Must Go.”1

2. SHALL IS USED IN MULTIPLE SENSES IN THE SAME DOCUMENT

The preferred meaning of shall in legal drafting is to create a duty and to impose that duty on an actor:

Subcontractor shall comply with all Contractor safety rules.

• Here, shall imposes a duty on the Subcontractor.

But shall is also used to mean that something will or must occur or be treated or viewed in a certain way:

“Seller” as used in this contract shall mean Oaker Services.

• Here, shall is not imposing a duty; it is saying that the term “Seller” refers to Oaker Services.

Legal drafters shouldn’t use the same word to mean different things—no citation needed—and Black’s Law Dictionary gives five senses of shall in legal writing: has a duty to, should, may, will, and is entitled to.2 One leading expert on contract drafting, Kenneth Adams, says that as to being used with differing meanings, “the word most abused in that regard is shall.”3

3. SHALL IS ARCHAIC.

Shall is an outdated word that, in the U.S., is rare in written or spoken English. Bryan Garner explains that today shall is usually used in only two situations: “(1) interrogative sentences requesting permission … <shall we all go outside?>; and (2) legal documents ….”4

Recommendations

You could limit shall to one meaning in documents by scrutinizing every shall to ensure that it imposes a duty on an actor. One good test: Try substituting the phrase “has a duty to” for shall 5 If it makes sense, you’ve used shall correctly: Subcontractor shall [has a duty to] comply with all Contractor safety rules.

• Correct use of shall.

“Seller” as used in this contract shall [has a duty to] mean Oaker Services.

• This usage doesn’t make sense.

• Drop shall: “Seller” as used in this contract means Oaker Services.

Members of the panel shall [have a duty to] be selected by the commissioner.

• This usage is not correct.

• “Will” works: Members of the panel will be selected by the commissioner.

• Active voice works: The commissioner shall [has a duty to] select members of the panel.

If scrutinizing every use of shall in your document would be too time-consuming and costly for your client, you could reasonably decide to leave the shalls as they are—especially if you’re drafting contracts. Although there are hundreds of cases of courts construing shall, nearly all of them concern statutes, not contracts.6

Finally, if you’re drafting simple agreements for nonlawyers (residential leases, consumer notices, website disclaimers), steer away from shall. For those, you could simply use “agrees to,” and if “agrees to” doesn’t make sense in a certain sentence, then shall likely wouldn’t have been correct, either. AL

1 Joseph Kimble, The Many Misuses of Shall, 3 Scribes J. Legal Writing 61 (1992); Alex MacDonald, Shall We Proceed? Ebbs, Flows, and Futility in the Debate over Words of Authority, 20 Scribes J. Legal Writing 81 (2022); Michele Asprey, Shall Must Go, 3 Scribes J. Legal Writing 79 (1992).

2 Shall, Black’s Law Dictionary (11th ed. 2019).

3 Kenneth A. Adams, A Manual of Style for Contract Drafting 9 (2013).

4 Bryan A. Garner, Garner’s Modern English Usage 825 (4th ed. 2016).

5 Bryan A. Garner, Garner’s Dictionary of Legal Usage 952 (3d ed. 2011).

6 39 Words & Phrases 173-239 (2006).