Secondly – and as regards the first – it leads to litigation. There are 76 pages in “Words and Phrases” (a legal reference) that summarize hundreds of cases in which “shall” is interpreted. Most leases, contracts and legal forms today are interspersed with the word must. Soll is a word loved by many, but it may be time to move away from obligation. The use of shall can lead the parties down the long and arduous path of litigation. Although the word “shall” has been used for generations to create a binding commitment, the word actually contains layers of ambiguity. Soll can be interpreted in such a way that it must, can, wants or even should. In countless cases, shall is used throughout the document, but with multiple interpretations.1 Here are some jurisdictions that interpret the word shall: Some common uses of the term “shall” in the legal sense include: Until recently, law schools taught lawyers that “shall” means “must.” That`s why many lawyers and executives think “should” means “must.” It`s not their fault. The Federal Plain Language Act and the Federal Plain Language Guidelines did not appear until 2010. And the fact is that while “shall” is the only clear and valid way to express “mandatory,” most parts of the Code of Federal Regulations (CFR) that govern federal departments still use the word “shall” for this purpose.
For a good discussion of “shall” and “must,” see Bryan Garner, A Dictionary of Modern Legal Usage (2nd ed. 1995), pp. 939-942. In the legislation of. Australia and at least three Canadian provinces (British Columbia, Alberta and Manitoba) that have amended their interpretive legislation to say that the term “shall” must be interpreted as mandatory. 6 R. Evid. 1 Note by the Advisory Committee; Fed. R. Civ. P.
1 Advisory Committee Note (“The revised rules minimize the use of inherently ambiguous words. For example, depending on the context, the word “shall” may mean “shall”, “may” or something else. The risk of confusion is exacerbated by the fact that “shall” is no longer commonly used in spoken or clearly written English. The revised rules replace “shall” with “shall”, “may” or “should”, depending on the context and the interpretation set out in each rule is correct. »). Needless to say, “may” suggests discretion (“we are allowed to fight on the beaches” evokes a very different image). The same applies to the combination of “should and may”. Despite the ambiguity of the word, the word is destined to continue to be used in the majority of agreements, contracts and legal forms. Instead, these documents should be drafted or revised in such a way that they must, can, will be or should. Unfortunately, the complete elimination of existing documents and templates without expert legal advice requires a review of countless documents and accurate analysis each time the word appears in a document to find the correct meaning and replace it with the appropriate word.
Alternatively, a global proofreading language can be inserted into existing documents to require that all uses of the word be interpreted as mandatory and not permissive. Over time, laws evolve to reflect new knowledge and standards. During this transition, “must” remains the safe and informed choice, not only because it clarifies the concept of commitment, but also because it does not contradict any case of “must” in the CFR. Currently, federal departments are reviewing their documents to replace all “should” with “shall”. It`s a big effort. If you look at page A-2, section q of this order, you will find an example of how a typical federal regulation describes this change from “shall” to “shall”. Don`t go through this long process. If you mean mandatory, write “shall”. If you mean forbidden, write “can`t.” Bryan Garner, a lawyer and editor of Black`s Law Dictionary, wrote: “In most legal instruments, violates the presumption of consistency. This is why shall is one of the most treated words in the English language. Consider this sentence: “The rental period begins with the beginning of the last of the … Now replace shall with one of the other verbs mentioned above.
In the above sentence, each time is replaced by must, will, can, should, or a combination of words, the sentence still makes sense, and it is impossible to determine what interpretation the author intended. Unless the reader is explicitly told that it should be interpreted as mandatory – and not as specific, i.e. the author is only making a recommendation or even a request – it is ambiguous and can give rise to litigation. In 1995, for example, the United States Supreme Court ruled in Gutierrez de Martinez v. Lamagno, which in some contexts could be interpreted as May.2 The decision does not imply that “should” always means “may”, but rather that the context determines whether “should” is mandatory or precise.3 What should you say when someone says to you: “Should is a perfectly good word?” Always agree with them because they are right! But in your next breath, be sure to say, “Yes, should is a perfectly good word, but it`s not a perfectly good obligation word.” Use “shall” and not “should” to make requests. “Should” is ambiguous and rarely occurs in everyday conversation. The legal community is moving towards a strong preference for the term “shall” as the clearest way to express a requirement or obligation. “In everyday or ordinary language and in its ordinary sense, the term `shall` is a word of command, and a word which has or must always have a binding meaning; as an obligation. It has a mandatory meaning, and it is usually mandatory or mandatory. It has the immutable meaning of excluding the notion of discretion and has the meaning of imposing a duty that can be applied, in particular if public policy favours this sense or if it is addressed to public officials, or if a public interest is at stake, or if the public or persons have rights that should be exercised or enforced.
unless otherwise intended; but the context must be very convincing before it is softened to mere permission,” etc. People v. O`Rourke, 124 Cal. App. 752, 759 (Cal. App. 1932)] 11 Office of the Federal Register, Drafting Legal Documents, Principles for Clear Drafting (15 August 2016), www.archives.gov/federal-register/write/legal-docs/clear-writing.html; Federal Aviation Administration, FAA Writing Standards, Order No. 1000.36 (March 13, 2003). Third, no one uses the word “shall” in everyday language. This is another example of useless lawyer`s speech. No one says, “You`re supposed to finish the project in a week.” Because the meaning of shall depends on the context, 25 years after the U.S.
Supreme Court decision, litigation continues over what`s important. Over the years, many opinions have interpreted “shall” to mean “shall”,4 while others have interpreted it as “may” or “will”.5 The subsequent use of the word, especially if it is not clearly defined, is intended to lead to unnecessary litigation. In fact, the cancellation has already begun. The Federal Rules of Civil Procedure and the Federal Rules of Evidence, for example, revised their rules to remove all uses of the word shall to avoid ambiguity.6 The notes state that “the word should, may or may mean something else, depending on the context.” 7 What about the “must”? It is interesting to note that English legislation avoids the use of “will” or “shall” in favour of “must”.