Clear Contracts in English: (2) “Shall” for contractual promises
Shall for contractual promises
Shall is the champion of all legal buzzwords. Many contract drafters (and translators) will throw it into every clause without thought. After all, can a document truly be considered a legal document if it is not signposted with shall at every opportunity?
This is flawed drafting. It is also a major reason why shall is one of the most litigated words in the English language (it is said that courts have interpreted shall variously to mean must, will, may and is). Every word in your contract should be handpicked to aid the reader’s understanding and shall is no different. Using it profusely only creates ambiguity and misinterpretation: are we introducing an obligation, a condition or a fact?
In our contracts, we tend to use four modal verbs: may, must, shall and should (and their negative forms). We also convey actions using the present tense and the future tense. These six verbal forms form the basis for all of our contractual rights and obligations, and each of them as a very specific function:
1. Use shall for contractual promises between parties:
The Supplier shall deliver the goods to the Customer.
2. Use must for objective requirements (e.g. under legislation, another contract):
The Supplier must comply with the directions of the court.
3. Use may for rights or options:
The Authority may require the Supplier to provide any of the Optional Services at any time.
4. Use should for recommendations or to expressing a high degree of probability:
To protect yourself, you should insert a change of control clause.
5. Use the future tense for future certainties and consequences (including those created by your own contract):
This Agreement will terminate once the Customer has paid all due invoices to the Supplier.
6. Use the present tense for simple facts (including those created by your own contract):
This Agreement is governed by the laws of the Czech Republic.
Outside of contracts (e.g. in reports, correspondence and legislation), shall has little relevant function. Historically, since has been used to impose law, but even here the UK Parliament has switched to using must in its place.
Choosing between…
The decision tree below shows how these should be used in practice:
Shall vs Must
Shall and must are both verbs of obligation.
While must can cover all kinds of obligations, shall is specific to contractual promises.
In this sense, we can understand shall to mean “hereby undertakes to” (i.e. by signing this contract)
Consider the following examples:
1. The Parties shall resolve Disputes arising out of or in connection with this Contract as follows:
2. Pursuant to the lease agreement of 1 January 2020, the lessee must vacate the premises by 31 December 2025 at the latest.
3. The contracting authority must, as soon as practicable, comply with any request from the economic operator
Only Example 1 creates a promise to do something – in this case a mutual promise – so uses shall.
By contrast Example 2 describes an obligation that already exists under a prior agreement and Example 3 imposes law. Both use must.
Shall vs Present Tense
If a fact or situation currently exists, use the present tense. This includes where that fact or state has been created by the contract itself.
Consider the following sentences:
1. This Contract comes into force on the date it is signed by the Parties.
2. This Contract is governed by the laws of England and Wales.
3. The estimated value of procurement shall be calculated based on the total amount payable.
In Examples 1 and 2, we have a contractual agreement that a given situation applies, but not a contractual promise. Neither party is promising to do anything. So shall would be inappropriate.
Only in Example 3 does a contractual promise exist. Even though the sentence uses a passive construction, we understand that both parties are promising to calculate the value in the manner stated.
Shall vs Future Tense
In conversational English, shall can be used to express the future tense in the first person (I/we shall invite you for lunch). But even this is somewhat archaic.
In legal English, shall is purely a verb of obligation. It should not be used to introduce future eventualities or automatic consequences. That is what the future tense is for.
Consider the following sentences:
1. This Contract will terminate on 31 December 2024.
2. If a force majeure event persists for more than 30 days, the Parties will be entitled to terminate this Contract.
3. The Contractor shall terminate all existing subcontracts with subcontractors within 10 days of the Effective Date.
All three examples refer to future events regulated by contract.
However, Examples 1 and 2 describe events and situations that will automatically transpire (unless subsequently amended by the parties).
Example 3 is also a future event, but one which will only come about through the actions of one of the parties. In this sense, it is a contractual promise.
Present Tense vs Future Tense
Note also the difference in use between the present and future tenses in the examples above.
The Contract comes into force (in the present) because we perceive the contract as being created at the same time it enters force. Both events are simultaneous.
The Contract will terminate on 31 December 2024 (in the future) because this date is clearly later than the moment of the contract’s creation.
Shall in Translation (Spanish, Italian and Czech)
Shall is peculiar because it does not have a direct equivalent in most other languages. Many European languages will use either the future tense, the simple present tense, the foreign-language equivalent of must or a set obligation phrase, regardless of whether the obligation is agreed to or enforced.
For instance, the European Commission’s General Conditions of Low Value Contracts contains the following sentences in English:
The contractor shall grant personnel access to the data to the extent strictly necessary…
The contractor shall adopt appropriate technical and organisational security measures…
The contracting authority shall send the debit note first to the leader of the group.
By contrast, Spanish tends to use the simple future or the modal verb deber (must) in the future tense:
El contratista limitará (will limit) el acceso de su personal a los datos a lo estrictamente necesario…
El contratista deberá adoptar (will have to adopt) las medidas de seguridad de carácter técnico y organizativo adecuadas…
El Órgano de Contratación deberá enviar (will have to send) la nota de adeudo en primer lugar al contratista principal del grupo.
In the same document, Italian tends to use the present simple tense:
Il contraente concede (grants) al suo personale l'accesso ai dati nella misura strettamente necessaria…
Il contraente adotta (adopts) opportune misure tecniche e organizzative di sicurezza…
L'amministrazione aggiudicatrice invia (sends) la nota di addebito innanzitutto al capofila.
Czech tends to use the perfective mood or the construction být povinen (to be required):
Svému personálu dodavatel/poskytovatel poskytne (will grant) přístup k těmto údajům pouze v rozsahu nezbytně nutném…
Dodavatel/poskytovatel je povinen přijmout (is required to adopt) náležitá technická a organizační bezpečnostní opatření…
Veřejný zadavatel zašle (will send) výzvu k úhradě nejprve vedoucímu skupiny.
None of these foreign-language equivalents contain the same functional difference as exists between shall and must. So there is a duty on translators working into English to consider the context of the obligation (does the obligation arise under the contract or outside the contract?) when choosing between shall and must – this is something Google Translate and DeepL are particularly useless at.
Verbs of contractual promise
It can, however, be helpful to think in terms of foreign-language verbs of contractual promise:
Spanish: El contratista se obliga a adoptar las medidas de seguridad de carácter técnico y organizativo adecuadas…
Italian: Il contraente si obbliga/impegna ad adottare opportune misure tecniche e organizzative di sicurezza…
Czech: Dodavatel/poskytovatel se zavazuje přijmout náležitá technická a organizační bezpečnostní opatření…
These constructions carry the literal meaning of undertake to, a phrase that conveys a contractual promise in the same way as shall.
So we can conclude as follows for translation purposes:
Where the intention is to describe a contractual promise (if the original language can logically be replaced by se obliga a/si impegna a/zavazuje se), use shall;
Where the intention is NOT to describe a contractual promise (where se obliga a/si impegna a/zavazuje se would not fit), use must, may or the present or future tense, as appropriate.
In applying the above, we’ll close this piece with one final translation example:
El presente Contrato entra en vigor y surte efectos desde la fecha de su firma.
Il presente Contratto entra in vigore alla data della sua sottoscrizione.
Tato dohoda nabývá platnosti a účinnosti dnem jejího podpisu.
Cannot mean:
This agreement undertakes to come into force and effect on the date it is signed.
Therefore, it should not be translated as:
This agreement shall come into force and effect on the date it is signed.
Instead, it should be translated using the present tense:
This agreement comes into force and effect on the date it is signed.
I hope you have enjoyed this article and that you can draw something from it in your own legal writing or legal translation process.
In our next article, we’ll look at the use of the active voice in our contractual and legal writing.
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