So it can be regarded as an oddity that stands for the proposition that courts think that expressing that which is mandatory is the foundation meaning of shall. The legal reference Words and Phrases dedicates 76 pages to summarizing hundreds of lawsuits that centered around the meaning of the word shall. All Rights reserved. Props to the FAA, though, as it was the first agency to bring this topic to our attention. We are taking registrations for future open enrollment sessions, with the hopes that things get better quickly and travel is once again safe. No answer to a question is legal advice and no lawyer-client relationship is created between the person asking the question and the person answering it. Churchill’s finer oratorical moments, however, are probably best left alone (together with Georges Clemenceau’s June 1918 speech, in which he went with ‘will’ (“I will fight in Paris”). Shall is a verb that indicates a strong desire, intention, or assertion. The word ‘Shall’ has the following meanings: The following are some case law interpreting the word shall: When used in statutes, contracts, or the like, the word "shall" is generally imperative or mandatory. The primary advantage is that shall gives you an extra tool to work with. So, which modal verb to use? v. a choice to act or not, or a promise of a possibility, as distinguished from "shall," which makes it imperative. Learn more. Nearly every jurisdiction has held that the word "shall" is confusing because it can also mean "may, will or must." So “shall means shall.” That effectively conveys the impression that the meaning of shall isn’t even worth discussing. For example, the notice shall be sent within 30 days. It has traditionally been used in legislation and is still being used today in some places. In fact, “must” is the only word that imposes a legal obligation that something is mandatory. It’s every legal writer’s conundrum: when writing a legal document, which word of the following is the strongest to use, imposing a mandatory requirement on the recipient of the document: The only word of obligation from the list above is must – and therefore, the only term connoting strict prohibition is must not. 1, 2 and 4 and for Respondents, Constitution of the united states of america. Many believe shall to be more formal of the two and fit for use in legal documents and contracts to stress a role or responsibility. The Supreme Court of the United States ruled that “shall” really means “may” – quite a surprise to attorneys who were taught in law school that “shall” means “must”. v. 1) to delay, suspend or hold off the effect of a statute. 2) in some statutes, "shall" is a direction but does not mean mandatory, depending on the context. We can blame our law school professors: until just a few years ago, even the top tier law schools were teaching students that the word shall means must. shall definition: 1. used instead of "will" when the subject is "I" or "we": 2. used, with "I" or "we", to make a…. In Vandertoll v. Kentucky, 110 S.W.3d 789, 791 (Ky. 2003) (here), statutory text was at issue. Copyright © 2020 ALM Media Properties, LLC. © Blake Morgan 2020. But inconsistent drafting means that one cannot rely on the traditional interpretation; terms needs to be read in the context of the overall agreement applying the usual (and common sense) principles: What about ‘must’? That helps you figure out what meaning you wish to express in a given context. ‘Shall’, ‘must’ and ‘will’ are all modal verbs (verbs used to express an obligation). See this one, for instance (from the Office of the Parliamentary Counsel (UK)), which states that: For some time now, drafters in Australia, Britain and Canada have steered clear of “shall” (see the references below). Usually ‘shall’ used here is in the mandatory sense. used to say that something certainly will or must happen, or that you are determined that something will happen: Don't worry, I shall be there to meet the train. Should . The Federal Plain Writing Act only clarified this in 2010, and clearly a lot of us didn’t get the note. D. The agency must return the complainant to her previous position as a GS-4 File Clerk and the complainant must withdraw her complaint. Should . D. App. The agency shall return the complainant to her previous position as a GS-4 File Clerk and the complainant shall withdraw her complaint. Our very own U.S. Supreme Court has interpreted the word to mean may. In the … For teachers of legal drafting, there are two main pedagogical approaches today for teaching lawyers and aspiring lawyers about this word: (1) restrict shall to … Even the Supreme Court ruled that when the … The same careful analysis must be made of the word "shall." The same applies to the combination of ‘shall and may’. Courts often interpret shall as should. v. Independent School Dist., 170 N.W.2d 433, 440 (Minn. 1969)], "In common, or ordinary parlance, and in its ordinary signification, the term 'shall' is a word of command, and one which has always, or which must be given a compulsory meaning; as denoting obligation. Legal reference books like the Federal Rules of Civil Procedure no longer use the word "shall." The enumeration in the Constitution, of certain rights, The Migration or Importation of such Persons as any of the States now existing, I will reap your fields before you at the hands of a host; Ye, And Agamemnon answered, "Fly if you will, I, "Many have come to ask for vengeance on that head," said the voice of the Queen of the Heavens, "and many more, My reader then is not to be surprized, if, in the course of this work, he, "If you consent, neither you nor any other human being. v. 1) an imperative command as in "you shall not kill." May. Don’t believe me? The same careful analysis must be made of the word "shall." To get in touch with one of our legal experts please fill in your details. Convenient, Affordable Legal Help - Because We Care! But one of the ancillary advantages is that using shall to express obligations is safe, despite fearmongering to the contrary. Posted in Categories of Contract Language 8 Comments. To be fair, it’s not really our fault that this confusion exists. In a legal document, “shall” generally means “is required by this rule (i.e., statute, regulation, by-law, etc.) Here’s what the court said: We will not commence a lengthy discussion on the definition of “shall.” KRS 446.080(4) states that “[a]ll words and phrases shall be construed according to the common and approved usage of language ….” “In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command and … must be given a compulsory meaning.” Black’s Law Dictionary 1233 (5th ed.1979). The interpretation of everything else is up for debate. After an overview of the substantive law, participants will[...], Writing for the Win: Legal Writing in Federal Sector EEO Cases. And if you really can’t get enough of this stuff, join us for this upcoming writing workshop in Washington, DC: Writing for the Win: Legal Writing in Federal Sector EEO Cases (May 8-10). For more on this topic see the Federal Plain Language Guidelines (page 25) and the Federal Register Document Drafting Handbook (Section 3). An imperative command; has a duty to or is required to.


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