The Court held that the sentence “[Motorplus] focuses on the express meaning of the words by referring to a set of . ” Claims” was not a guarantee or obligation to refer to a set of claims, but considered the clause to be a description of the proposed referrals and not a promise to provide those recommendations. What about the “must”? It is interesting to note that English legislation avoids the use of “will” or “shall” in favour of “must”. “Must” always suggests an absolute obligation. “There is no doubt that the term `shall` is interpreted as `may` in certain circumstances. The word “shall” in its ordinary sense is mandatory. unless such interpretation would entail absurd or embarrassing consequences. Yes, this is the design style of the NEC construction contract form. In the blog post, I called it “Expressing Obligations as a Narrative.” Everything seems strange if you`re not used to it. “Should” sounds strange to non-lawyers. So, to decide the best way to draft a contract, the test is not “Sound strange?” but “Is it ambiguous” and “Does it help contract users understand and comply?” NEC contract authors cite companies and government organizations that have made NEC terms their preferred form of construction contracts as evidence of how these terms work for the parties: see www.neccontract.com/About-NEC/Endorsements. Your rewrite removed “should” and also improved the original by identifying the performance time. Is it appropriate to ask who should submit the certificates, or would it be obvious in the context? Because even in the simple present, this obligation is always in the passive (what is done), not in the active voice (who does what).
See How and Why Passive Verbs Should Be Avoided. Thank you for your kind comment. 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.” “They didn`t create an obligation,” he told me. « Impose an obligation, the use, not the will. » I protested that when A sued for the £25,000, B would need a better defence than: “The contract simply said I would pay the money to A – it didn`t say I had to”. The coach, a former partner in a City of London law firm, insisted. “A treaty must say, should, not will.” Applying the principles discussed above to wills, one can take the sentence of Re Walker who opened this article, in which the words “die” are part of the case and “must stand” are part of the trial. The mere fact that wills take effect upon death means that in most cases, including this example, the cases and conditions must necessarily precede the request and must therefore be expressed in the past tense according to the principles discussed above.
Thus, the example could be paraphrased: “If one of my children died during my lifetime and the problem lives on my death, that problem should be in the place of that deceased child.” This use of the word “shall” in explanations of the case and condition was common not only in private legal documents between the parties, but also in Acts of Parliament, but in the latter practice was established to limit the use of “shall” to statements of undertaking only. The case and condition must be expressed in the present tense, and in the Acts of Parliament they are always expressed when facts are stated which must coincide with the dispute, and in perfection when facts are given which must have preceded it. In On Legislative Expression (House of Commons Papers (1843) vol. xx), George Coode explains the advantage of this rule by saying that “the description of cases and conditions in the present and perfect forms [it] clearly distinguishes imperative and potential language from legal action. The narrative will appear in narrative language, instead of usurping compelling language, as is currently the case, and thus confusing facts and law. The explanation of the legal action can be either mandatory if “shall” is used, or permissive if “may” is normally appropriate. Before considering the use of words, the structure of the clause itself must be analyzed. There are generally three parts to the basic structure of a legal clause such as those mentioned above, namely: 11 Federal Register Office, Elaboration of Legal Documents, Principles of Clear Writing (August 15, 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). If the government has an obligation, the word “shall”, when used in legislation, should be interpreted as “may” unless a contrary intent is evident (Railroad Co v. Hecht) For example, consider the following: “The manufacturer`s certificates of conformity must be submitted to the engineer for approval.” Black`s Law Dictionary lists the following five meanings of shall: If you change each will into a will, the same applies; Only one imposes an obligation. Another peculiarity of legal writing is that lawyers tend to write in the future tense and use generously for this purpose. Here are two typical examples of a “future form” of an agreement: Example: should explicit permission, not obligation I particularly enjoyed this post, very useful. It reminded me of our old Latin teacher who told the story of the man swimming in the sea, who shouted, “I will drown and no one will save me” and no one did! Rather a high price for bad grammar! Contrary to the opinion of lawyers, shall does not have a single fixed meaning. These cases from different fields all illustrate that difficulties in the construction of legal documents can arise solely because of the choice of auxiliary verbs used. Particular difficulties can be found in the words “will” and “shall” in legal and common English. Although a very wide range of meanings can be attributed to them and their use varies depending on the time, place and practice of the user, there are general principles that are generally accepted in common English to distinguish the words “will” and “shall”. In fact, we don`t always use targets, even in long, written contracts.
The following typical clause of a lease, taken from formula 2: 64 of volume 11 of the 4th edition of the Encyclopedia of Forms and Precedents, embodies these two words by using them in the usual but misused manner by lawyers: “If the tenant desires to determine the time granted herein and gives six months to the landlord, written notice. and pays the rent until the date of such determination. then, immediately after the expiration of this communication, the present death. become null and void. “. The will has an advantage: it is still common in everyday English, unlike shall. In British books, there are at least seven wills for each will. In American English, the Oxford English Dictionary tells us “the word shall is now rarely used in a normal context”. You are right, the literal meaning of the words “shall” is to express a commitment using modern English, such as “shall”.
The dispute concerned the meaning and effect of clause 1 of the contract, in particular whether or not Motorplus was obliged, using the word `shall`, to refer certain claims to PML. The Court of Appeal concluded that, despite the use of the word “shall” in clause 1, the agreement did not oblige Motorplus to return the claims to PML. The Court took into account fundamental contractual principles in interpreting the clause and noted that the Court`s first step is to determine the objective meaning of the terms used by the parties, taking into account the relevant facts and the surrounding economic context. In case of ambiguity, the court may then consider another meaning of the words in light of common sense (Wood v Capita Insurance Services (please click here to read our previous article on the subject for more information).
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