When the PSG was formed in 2001 one of our aims was to produce documents written in plain English as far as possible. Plain English drafting was in its infancy and the PSG were keen to be seen to be leading the way. One of the words we wanted to eradicate from our documents was shall.
There were two reasons for this:
- shall is used far less frequently in normal English spoken language than will, and under the traditional rules of grammar should only be used in the first person (i.e. with “I” or “we”), and
- more importantly from a drafting perspective shall has multiple meanings – it can mean may, will, is or must.
For example:
- The Purchaser shall pay the Price on the Date of Entry (shall means must – it’s an obligation)
- Any Notice shall be sent by first class post or delivered by hand (shall in this context could mean must or could mean may)
- The Company shall have a period of 5 Business Days to object to the Proposal (shall means will)
- This Agreement shall be governed by Scots Law (shall means is).
Bryan Garner, the legal writing scholar and editor of Black’s Law Dictionary, wrote that “In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language.”
Clearly, we were in good company in wanting to banish ‘shall’ from the PSG documents but what to replace it with?
Our first thought was to use must for obligations and may for permissive clauses. But some of the then PSG members felt that must sounded too bossy or harsh. So, we adopted will – the Purchaser will pay the Price on the Date of Entry. You must be careful though when using will always to specify when something will be done otherwise it becomes an unenforceable open-ended obligation.
The world of drafting has moved on since 2001 and there are now many more good examples of drafting in plain English. When we look at some of our early documents we can see room for improvement in the use of plain English. Legislative drafters now routinely use must for obligations. So, when we kilted the Model Commercial Leases which use must for obligations it was an easy step for us to adopt the use of must in the PSG leases.
Whatever terminology you choose to use the most important thing is consistency, so do take care if you are amending a PSG lease not to introduce shall into the new drafting. Where a document contains a mix of shall, will and must, the Courts will assume that these words were intended to have different meanings which could defeat the purpose of your amendments.
We continue to strive to use plain English in our drafting. If you spot archaic terminology which you think could be improved please do get in touch.