This musty old thread came back to my attention recently, and I researched to find out the current status of “must” vs. “shall”. It seemed “must” might be losing ground. I was wrong. Now I am seeing “the Contractor must” and various other new “must” sentence construction littered all over the UFGS/SpecsIntact world instead of “the Contractor shall”, etc. If they were going to take all that time to proofread every such change, why not do it right and use streamlined and imperative sentence construction?
“Must” can also mean something that is logically very likely.
E.g. there must be something wrong with these attorneys who say “shall” is the most litigated word. I bet there must be some contracts under litigation because they used the word “must”, too.
Hmmm, I must have forgotten to switch the laundry over.
It’s so cold even though the heat keeps running, there must be a draft.
Wow, it smells like there must be a rotten egg around here!
None of that creates an absolute obligation.
Mr. Contactor, don’t you know that “must” means you had an obligation? No your honor, I thought it was just logically very likely.
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The article in the link Dewayne provided is interesting and useful. It seems the architect or specification writer does not have much, if any, control over what is in the Agreement or standard forms but in my technical specifications especially I avoid the word “shall” and use the imperative mood almost exclusively:
“Submit samples.”
“Paint the wall.”
“Bring doughnuts to project meetings.”
Wayne, pls explain why I should avoid using the word “shall”. of “Shall be”, after reading this thread I searched my specs and I am guilty, so why should I be concerned? Be gentle, have not slept in 18 hours.
The article referenced/linked in this thread states that using “shall” is OK:
To correctly use shall, writes Bryan A. Garner, editor-in-chief of Blacks Law Dictionary, confine it to the meaning has a duty to and use it to impose a duty on a capable actor.
That makes sense from a Form of Agreement/General Conditions point of view, when the word “shall” is directed to a “capable actor”, but what about the following examples (straight outta MasterSpec)?:
“Retesting of products that fail to meet specified requirements shall be done at Contractor’s expense.”
“Structural Performance: Railings, including attachment to building construction, shall withstand the effects of gravity loads…”
This duty in using “shall” in the above examples clearly does not apply. The MasterSpec language that Wayne cites helps, but not only with respect to the colon! What about the word ‘shall’ that follows in these examples?
How do the railings have a duty to withstand the effects of gravity loads?
Since the specifications are directed to the capable actor (the Contractor) MasterSpec could have written:
Retesting: Bear the cost of retesting products that fail to meet specified requirements.
2: Structural Performance: Provide railings, including attachment to building construction, that withstand gravity loads.
Safety Glazing: Comply with 16 CFR1201, Category II
Note after each subparagraph heading and colon the next word is a verb (imperative mood). Note also this streamlined style saves a few words in each case though this is not a major benefit. Finally, “bear” in this case means to absorb (verb) not the big, hairy thing that can eat you (noun).
Item 1. has 13 words instead of 15.
Item 2. has 13 words instead of 15.
Item 3. has 6 words instead of 8.
I am quoting from the CSI Specifications Practice Guide, 1.5.4 “The imperative mood should generally be maintained throughout a specification. Consistent use of terminology and language contributes to better communication. Avoid duplicating or contradicting requirements contained elsewhere in the project manual. Because the contractor and owner are the only parties to the owner-contractor agreement, all instructions are addressed to the contractor. The words the contractor shall are generally omitted but may be added for clarity when both parties to the contract are mentioned in the same article or paragraph. Do not address individual subcontractors or trades. References to a specific responsibility should be made to the specification section.”
From Chapter 2 Language, 2.3 Vocabulary.
“Shall and Will: Shall is used as an imperative in reference to the work required to be done by a contractor. Will is optional and is used in connection with acts and actions required of the owner or the architect/engineer (A/E).
Must and is to are not recommended.”
From 2.5 Sentence Structure, 2.52 Indicative Mood.
"The indicative mood, passive voice requires the use of shall in nearly every statement. This sentence structure can cause unnecessary wordiness and monotony:
Adhesive shall be spread with notched trowel.
Equipment shall be installed plumb and level.
Two coats of paint shall be applied to each exposed surface.
Versus Imperative Mood - My prefered mood.
pread adhesive with notched trowel.
Spread adhesive with notched trowel.
Install equipment plumb and level.
Apply two coats of paint to each exposed surface.
This is my “STANDARD OF CARE”
I avoid being wordy and monotinous. However, I can still be monotinous because I am required to continually ask, beg, and request for answers to questions. I ask to many questions and need to many drawings.
I was once accused of being rude when I used the imperative mood in e-mails (circa 1990). I was requested to start each imperative sentence with “please.”
My favorite attorney, Ken Adams, is a firm believer that shall means shall. This article includes a couple of links to other posts; all are good reading.
One of those links leads to another post on his blog, Does Shall Mean Should?. In this discussion, the thing that baffles me is how courts decide that “shall” is to be interpreted as “should.” ‘In context, the word shall may reasonably be understood as should, a precatory encouragement to the parties to work matters out. Because the word shall may reasonably be construed to mean either should or must, the court finds that its meaning is unclear.’
Without clear, mutually exclusive definitions, how can we create documents that are not subject to interpretation, and how is a reader to know which definition is the one in use?
I’ll continue to use shall to mean shall, but at the moment I can’t think of a reason to use it in specifications. Division 00 is another matter; it’s written as a description of responsibilities, and so makes shall a useful, even necessary word.
I’d love to get rid of both shall and must. But when working on SpecsIntact projects that would be a monumental task, since the UFGS specs have long been filled with instances of “shall”. Now, when I see some “shall” remaining, perhaps someone could say it oughta be changed to “must”. Good grief.
