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Help finding article on shall vs will in legal English

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Thread poster: Charlie Bavington

Help finding article on shall vs will in legal English

Charlie Bavington

United Kingdom
Local time: 08:04
French to English

Aug 30, 2006

A few weeks ago, I believe I saw a link somewhere on this site to a very good article about the use of shall and will in contracts. From memory, the basic idea was that "will" = future events and "shall" = obligation between the parties.

Anyway, I can't find it in either the forums or the English monolingual questions, and I'd like to find it again (and google isn't much help with the key words being so common!). Can anyone help, please?

(Yes, I've tried the forum search, but the "search for all these words" option seems to adopt a logical OR rather than logical AND approach, and behaves exactly the same as "containing one of these words" - again, when you're looking for "shall" and "will", etc. it's not much use

)

Thanks awfully,
Charlie

GoodWords

Mexico
Local time: 02:04

Member (2003)
Spanish to English
+ ...

In the meantime...

Aug 30, 2006

I tried searching the forums on this set of keywords: shall obligation will future, and it did do what appeared to be an AND search, but I didn't find the reference you were looking for, either. However, in the meantime, maybe this search will yield some useful information: http://tinyurl.com/grwxx . It gets too many results, of course, but a few of the top ones seem to be relevant.

//Update: this search looks more useful.

[Edited at 2006-08-30 18:49]

Mihai Badea

Romania
Local time: 10:04

Member (2004)
English to Romanian
+ ...

Article in The ATA Chronicle

Aug 30, 2006

I don't know if this helps, but an interesting article about the use of shall, must, will etc. ("Banana Peels in Your Legal Translations? Shall: A Slippery Word for the Unwary and Wary Alike", by Matthew Adams) was published in the October 2005 issue of The ATA Chronicle.

[Edited at 2006-08-30 19:33]

Rebecca Jowers

Spain
Local time: 09:04

Member (2005)
English to Spanish
+ ...

"Shall" as a "word of authority"

Aug 30, 2006

For me, the best and most comprehensive treatment of the use of “shall” in contracts and in legal English in general can be found in Bryan A. Garner’s “A Dictionary of Modern Legal Usage”, New York: Oxford University Press, 1995, pp. 939-942, under the entry “Words of Authority”. (Garner is a well-known legal linguist and is Editor-in-Chief of “Blacks’s Law Dictionary.”)

After giving many examples of misuses of “shall” in legal drafting, he distinguishes between the “American Rule” (so-called because it is followed by “some careful American drafters”) whereby the use of “shall” is restricted exclusively to the meaning “has a duty to”, and the “ABC Rule” (so-called because “in the late 1980’s it was most strongly advocated by certain Australian, British and Canadian drafters”) whereby the use of “shall” is prohibited altogether. Garner explains that the ABC rule holds that legal drafters cannot be trusted to use the word “shall” correctly under any circumstances and, thus, a more appropriate option must be chosen.

Garner then offers the following options, indicating that “the careful drafter might consider adopting either of the following glossaries, preferably the latter.”) Here are his suggestions (p. 942):

1) American Rule:

shall = has a duty to

must = is required to (used for all requirements that are not duties imposed on the subject of a clause)

must not = is required not to; is disallowed from; is not permitted to

may = has discretion to; is permitted to

may not = is not permitted to; is disallowed from

is entitled to = has a right to

will = (expresses a future contingency)

should = (denotes a directory provision)

2) ABC (Australian, British, Canadian) Rule:

shall (not used)

must = is required to

must not = is required not to; is disallowed from; is not permitted to

may = has discretion to; is permitted to

may not = is not permitted to; is disallowed from

is entitled to = has a right to

will = a) expresses a future contingency

will = b) (in an adhesion contract, expresses one’s own client’s obligations)

will = c) where the relationship is a delicate one, expresses both parties’ obligations

should = (denotes a directory provision)

I hope you find this useful.

Saludos desde Madrid!

Tony M

France
Local time: 09:04

Member
French to English
+ ...

MODERATOR

Here's the original KudoZ question

Aug 30, 2006

Hi Charlie!

Here's the original KudoZ question we all looked at, I think it contains the link to the article you wanted.

http://www.proz.com/kudoz/1456888

Personally, I thought the article very helpful, but other contributors didn't rate it too highly.

Lucky for you, I kept this one, because I found it so useful!

[Edited at 2006-08-30 22:18]

Charlie Bavington

United Kingdom
Local time: 08:04
French to English

TOPIC STARTER

Great - that's the one

Aug 30, 2006

Thanks to all who have contributed to my search. The issue certainly appears less than clear, but the American Rule (as per Rebecca's list) is certainly what I was thinking of (despite the fact that I'm a Brit!) and fits with my intuition of what makes most sense...

Anyway, thanks again, folks.

mediamatrix
Chile
Local time: 05:04
Spanish to English
+ ...

International Standards

Aug 31, 2006

Although not 'legal' texts in the generally-accepted sense, international standards such as those published by the International Organization for Standardization (ISO), the International Electrotechnical Committee (IEC), etc. are, in effect, legal instruments.

So, too, are standards issued by the regional (e.g. ETSI and CENELEC in Europe) and national (ANSI in the US, BSI in the UK, AFNOR in France, DIN in Germany ...) standards bodies

International Standards are drafted in accordance with rules that are both enforceable and enforced, intended to minimize the risk of mis-interpretation. These are set out in ISO/IEC Directives Part 3 - Drafting and presentation of International Standards. (ISBN 92-67-01055-7 for the 1989 edition)

This Directive has been transposed (and adapted as appropriate) for use at the regional and national levels and, again, the rules use is obligatory at those levels (as I learnt - to my cost - when I was involved in the publication of European Standards for digital broadcasting).

I respectfully suggest there should be a copy of the Directive on every technical translator's desk (or at least, on his/her hard disk). The 1997 edition is available here: http://anubis.dkuug.dk/JTC1/SC22/WG9/isodir3.pdf

The section relevant to this discussion is Appendix E: "Verbal forms for the expression of provisions" which sets out in some detail the accepted useage of English and French words to convey four classes of statement:

requirements / prescriptions
recommendations / recommandations
permission / autorisation
possibility / possibilité

with acceptable equivalent expressions and some proscribed expressions.

A few highlights:

"Shall" and "shall not" ... "are used to indicate requirements strictly to be followed in order to conform to the standard and from which no deviation is permitted."

Do not use "must" except to describe "unavoidable" situations.

When indicating positive and negative "permission", for which the preferred terms are "may" and "need not", the Directive says: "Do not use "can" instead of "may" in this context.

The result of aderence to these rules can be unnatural English/French, but that's true of almost the entire content of these documents anyway and drafters, editors and end-users end up adjusting - in the same way as lawyers and their clients have to adjust to legalese in laws, deeds and contracts.

The difference 'twixt the two worlds, I guess, is that standards-makers abhor ambiguity, whilst the legal profession thrives on it...

MediaMatrix

PS Anyone involved in European Standards (EN...) should try to get a copy of the "PNE Rules". There was (maybe still is ...) a tri-lingual edition (English/French/German) issued in September 1991: CENELEC Internal regulations (IR) Part 3: Rules for the drafting and presentation of European Standards (PNE-Rules).

The above-mentioned discussion on English and French useage is extended here to include German, for example: It is not permitted to replace "may" by "can", nor "darf" by "kann".