Guest post – On banishing shall and throwing the baby out with the bathwater | From Words to Deeds: translation & the law

Today I’d like to point out to you an article by Kenneth A. Adams. His book A Manual of Style for Contract Drafting is widely used throughout the legal profession. The Lawyers Weekly explains: “In the world of contract drafting, Ken Adams is the guru”.

Among his many activities, he gives seminars, lectures at law schools, and acts as a consultant and expert witness on contractual matters. Ken’s edifying blog contains a multitude of posts about specific terms and issues relating to contract drafting.

I recently came across one of his more recent articles, published in the journal The Australian Corporate Lawyer, entitled “Banishing shall from business contracts: Throwing the baby out with the bathwater“.

Here’s a taster:

In Australia, bastion of clearer, ‘plain-language’ drafting, it’s now the orthodox view among commentators that contracts should be purged of shall. For example, the best-known Australian text on drafting, Peter Butt’s Modern Legal Drafting 262 (3rd ed. 2013), says that “shall is attended with so many problems that the need for banishment is beyond argument.”

But as explained below, the justification for getting rid of shall falls short. Dispensing with shall entirely in business contracts comes at a cost – you’re throwing the baby out with the bathwater. In the context of a rigorous framework for using verbs to express the categories of contract language, using shall to impose an obligation on the subject of a sentence, and for no other purpose, offers advantages.

Click here to read the whole article, including sections on:

Overuse of Shall
Alternatives to Shall
Missing the Broader Problem
Using Shall to Mean Has a Duty To
Rehabilitating Shall

By the way, Ken is giving a webinar on Thursday this week for eCPD Webinars on The Perils of Translating International Contracts. There are, I believe, a few places left to take part live, and the recordings can also be purchased for watching after the event.

You might also be interested in a previous guest post authored by Ken Adams that I published in 2012 on Problematic terms of art used in contracts.

5 thoughts on “Guest post – On banishing shall and throwing the baby out with the bathwater”

I absolutely agree with the article by Ken Adams arguing for the continued use of “shall.” By extension, translators (into U.S. English, at least) encountering a future tense verb in a contract should use the term “shall” rather than “will” (if the intent of the source text is to express mandatory action). We are often forced to correct this when working with new translators. However, the rule should not be followed blindly because there are instances when the future tense is used descriptively, in which case the use of “will” would be appropriate.