Sunday, June 19, 2016

What is to be done – the burning (legal) issue of our time*

It is so hard to keep up with fashion and know what is right.  Every attorney knows this.  Once upon a time, the rules were clear. Third parties shall meet their obligations.  The legal writer used the modal “shall” in full confidence that everybody understood the word “shall” to mean to have no choice.

Alas, the world has become more complex.  Experts and governments have cast doubt on that assumption, rendering it difficult to know how diligent counselors are supposed to express themselves.  For example, Kenneth Adams, in his Manual of Style for Contact Drafting, insists on shall for expressing obligation but specifying the use for third parties. He is not fond of must, arguing that it does not create an obligation but instead describes it, adding that its tone gets obnoxious over a long document. The federal register,, disagrees with him and states that must does create an obligation. The ABC rule, invented by a group of Australian, British and Canadian legal writers, had previously suggested that the change to must. Shall seems to be going the way of whither, hither and thither, perfectly wonderful words that were used improperly.

Of course, there are a few will supporters. Technically, “will” refers is predictive in the second and third person but prescriptive in the first person.  This apparent ambiguity renders it inappropriate for stating an obligation.  This lack of clarity is undeniable but its simple sound is pleasant to the ear.

Back to our shall, courts have occasionally ruled that it can imply permission, thus also rendering it ambiguous.  Still, 99% of the population would understand that the sentence John shall pay Mary $500 a month for rent involves an obligation, not a choice.  Since it combines sufficient clarity and a mellow sound, I prefer the American “compromise” of shall.

Still, as I continue to translate contracts, I must admit that I will be subject to bouts of doubt regarding what modal to apply in the sentence of obligation before me.  I hope that I won’t be considered too old fashioned if I continue to use the classic simple shall or even will.

* What is to be done is the name of a romantic novel by Nikolai Chernyshevsky in 1886, which inspired many later revolutionaries in Russia for some reason, including Lenin himself, who wrote a similarly titled pamphlet in 1901, adding “the burning issues of our time”, describing his agenda for change, to put it diplomatically.

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