These are some of the reasons why these documents require us to use the word “shall” when we mean “mandatory”: 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.” Until recently, law schools taught lawyers that “should” 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. 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. The terms “consider” and “consider” are often used in construction and project documents, including as a limitation on discretion such as decisions to grant or withhold consent, or as an input into the assessment of extensions or time differences. The New South Wales Court of Appeal recently had the opportunity to consider these formulations in the context of an expert decision on the operation of a rent review clause. The decision recalls that if a procuring entity does not intend the criteria for a procurement to be exhaustive, this should be clearly indicated. “Must” can be used to create requirements and prohibitions. However, prohibitions should be worded as “X cannot” instead of “not X must”. Almost all jurisdictions have decided that the word “shall” is confusing because it can also mean “may, will or shall.” Legal reference works such as the Federal Rules of Civil Procedure no longer use the word “shall.” Even the Supreme Court has ruled that if the word “shall” appears in legislation, it means “may.” 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. Some common uses of the term “shall” in the legal sense include: You`ll also have access to many other tools and opportunities designed for those who have (or are passionate about it) language-related jobs. Participation is free and the site has a strict privacy policy. For a good discussion of “shall” and “must,” see Bryan Garner, A Dictionary of Modern Legal Usage (2nd ed.
1995), pp. 939-942. The decision in Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205 concerned Strike Australia Pty Ltd, which subleases from Data Base Corporate Pty Ltd in King St Wharf, Sydney. Strike informed Data Base that it was using the first option to renew its lease. The key provision at issue in the sublease agreement was as follows: `The appraiser shall take into account market rents for comparable premises in the vicinity of the premises`. The appraiser considered four comparable properties to determine the rent, two in Sydney`s central business district, one in Macquarie Park and one in Bondi Beach. We call “shall” and “shall not” words of obligation. “Must” is the only word that imposes a legal obligation on your readers to tell them that something is mandatory. Also, “can`t” are the only words you can use to say something is forbidden. Who says that and why? For all these reasons, “must” is a better choice, and change has already begun. For example, the new Federal Rules of Appeal Procedure use “shall” instead of “should.” “Shall” is not simple English. But legal authors use the word “shall” all the time.
You will learn it by osmosis at law school, and the lesson will be reinforced in legal practice. 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. There was disagreement between the Court of Appeal on a question of interpretation as to whether the appraiser should have considered comparable real property. Basten and Ward JJ. stated that the identification of certain characteristics in the clause to be considered by the expert was an implied exclusion of other assets, and they strongly supported the premise that commercial contracts should be interpreted by reference to the language used by the parties. President Bell considered whether the term “consider”, properly interpreted, means “only considerate” and concluded that this was not the case. President Bell assumed the natural sense of “considering” in context (including the nature of the assessment and the role of experts) to the extent that the list of properties was not exhaustive. Ask a writer what “should” means, and you`ll hear it`s a mandatory word – as opposed to the permissive “may.” While this is not a lie, it is a gross inaccuracy. Often, it is true that “should” is mandatory. But the word often has other meanings – sometimes even as a synonym for “may.” In almost all case law, courts have held that “shall” can mean not only “shall” and “may,” but also “will” and “is.” Official editorial bodies are increasingly recognizing the problem. A lot.
The authors adopted the “target-go” style. You should do the same. 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. Authors should not use the terms “shall” and “shall” together in the same law or regulation. This could raise the question of whether different meanings are intended. The trial judge concluded that the expert had not executed his conclusion in accordance with the sublease. Strike appealed on three grounds. Strike argued that determining market rent was inherently a discretionary exercise and that subletting did not expressly specify which comparable space the appraiser might consider. First, lawyers regularly abuse it to mean something other than “has a duty to do so.” It has been so corrupted by abuse that it no longer has a fixed meaning. What should you say when someone says, “Should it be 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.” However, the court unanimously concluded that the other premises examined by the expert were objectively outside the “vicinity” of the premises and the appeal was dismissed. If you have any comments or questions about this, please contact: Should is an imperative command that generally indicates that certain actions are mandatory and not permissive.
This contrasts with the word “may,” which is generally used to indicate a permissive provision that usually involves some degree of discretion. Log in or register (free and only takes a few minutes) to participate in this question. If you would like to know how Lexology can advance your content marketing strategy, please email [email protected]. Dr. Bruce V. CorsinoFAAT Plain Language Program ManagerPhone: 202-493-4074Email: bruce.corsino@faa.gov 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. » Bryan Garner, Legal Writing in Plain English, 2001, p. 105 et 6.