Where There’s a “Will”…

There’s an interesting exchange over at AdamsDrafting between blogger Ken Adams and a couple of lawyers from Cassels Brock, John Gillies and Kathleen Hogan. The issue is the use of “shall” and “will” in business contracts, having, of course, to do with the expression of obligation and futurity, and vexed by a possibly differing practice of interpretation of the legislative use of these words.

How do you use these two tricky words in contracts? Do you define them in the contract or leave their meaning to interpretation?

I shall be interested in what you will have to say.

Comments

  1. I am with the blogger Ken. I don’t think “shall” is archaic or other than plain language, in a legal document. Plain language would involve (among many other things) avoiding false futures (‘when the parties shall receive a notice …’ – that’s good French construction but not good English construction).

    I have some sympathy for the commenter to the Adams blog who said that in a less formal agreement, like a letter agreement, ‘will’ can do. It just has to be very clear that saying ‘X will do Y’ that this represents an obligation. It is not hard to make that clear.

    Ontario’s Legislation Act, 2006, did not reproduce the ancient provision of the Interpretation Act, to the effect that ‘shall’ denotes obligation and ‘may’ denotes option. That provision was thought inaccurate as a matter of law, to begin with. Ruth Sullivan’s edition of Driedger on Interpretation of Statute has several pages on how misleading the Interpretation Act rule is.

    British Columbia’s statutes consistently use ‘must’ where most Canadian statutes would say ‘shall’ – I think it looks odd. I like restricting ‘must’ to a condition rather than an obligation.

    But Ken Adams’ main point is that consistent use is essential, whichever style one adopts. Clearly that is right and will/shall continue to be.

  2. I’m with John and Ken. It came as quite a shock to me to be told that “shall” is archaic. I have been using it for the first person plural and in the imperative voice all my life — and even at my age I’m not old enough to be archaic! One of the sad features of recent developments in colloquial language is the loss of useful distinctions. “Will” and “shall” is a useful distinction. Another that we seem doomed shortly to lose is “reticent” and “reluctant”; they are far too frequently treated as synonymous. And then, of course, there’s the dreadful “outside of”; I won’t go on.