Using the word "shall" in specifications

Archive of Older Topics Archive - Specifications Discussions #2
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I have a California public-agency client who advises that their attorney will not permit the use of the word “shall” in any manner in the contract or the specifications. We are supposed to use either alternative sentence constructions, or one of the words “will” or “must”. (There are only a limited number of instances where we use “shall”, primarily to avoid occasionally awkward sentence constructions.)

However, I have always been told that “will” must be avoided and that “shall” has more legal strength. And, I’ve never used or heard of using “must”. I don’t know if there is some new case-law precedents involved here, or new thinking on the part of some attorney’s or public agency organization.

Has anyone either had a problem because of the use of the word “shall” or become aware of a change in legal approach with this word?

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Strange attorney. Its owner ‘will’, contractor ‘shall’.

However, I avoid the actual use of the word as much as possible because it just becomes so repetitive. Use Imperative language. You don’t need to say ‘The Contractor shall…’ do something. Just write it ‘Do something…’ Makes it easier to read.

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If written as instructions to the contractor (which they are) specifications don’t need the word shall.

But, in the conditions of the contract, which are a statement of relationships and obligations, some form of imperative is needed to indicate what each party’s responsibilities are.

As far as using “must”, it has always been my understanding that the common use of “will” and “shall” apply. I have not heard of anyone promoting the use of “must”.

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Then there is an alternative meaning for must: a periodic state of the bull elephant characterized especially by aggressive behavior and usually connected with the rutting season.

Perhaps thinking of that will put the request in proper context.

5

“must” and its sister “to be” are so prevalent in many specification sections I receive from manufacturers and part time specifiers that I set up an Autotext command that converts those words to “shall” with the F3 key when I have to incorporate them into my sections.

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John-
I have never found that it does any good to argue with attorneys employed by public agencies. Write a letter to your client explaining your position and then say that upon their direction you will do as the attorney suggests, even though it is counter to your own experience. … And then make sure your billing gets paid.

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Try substituting the words “agrees to”.

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“Agrees to” should appear only in an agreement. The conditions state what is to be done by whom, and the specifications tell the contractor what to do; all the agreeing takes place when the parties sign the agreement.

But, as noted by Anne, sometimes you end up saying things you don’t really want to say.

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This may be a case of an attorney trying to simplify contract language and make it more intelligible. I believe some states have enacted legislation requiring laws and contracts to be easier to understand. I have told our production staff and our consultants that I don’t want to see the word “shall” used in Drawing annotations or in specification sections. Following CSI’s recommendations on streamlining can be applied to Drawing notes as well as specification text and will usually result in a shorter, clearer statement of the requirement. I have taken a 25 page spec, shortened it to 15 to 18 pages, made it clearer, and actually added requirements.

I agree that it never does any good to argue with any attorney, and most attorneys have extremely limited experience with construction contracts. They are usually unaware of the practical implications of their position and the potential for conflict with other contracts; e.g., Construction Contract requirements preventing the A/E from complying with Design Contract Requirements.

As noted above, make your position known from your perspective as one having experience with construction contract (not as an attorney), and then follow your client’s instructions as best you can.

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Whoo-ha-ha-ha! Now that’s a good one - “an attorney trying to simplify contract language and make it more intelligible”! Ain’t it funny, any attorney is automatically assumed to know about construction contracts, while those of us who work with it every day are supposed to keep our hands out of the “legal” stuff.

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I too eschew the word shall where the imperative verb is more direct, but also find that in a few cases it is the still clearest way to indicate that the contractor is required to do something. The CSI Manual of Practice, which should be definitive for usage in the construction industry (notwithstanding whatever Blacks Law Dictionary may say), says the following (p. FF/170.2, 1992 edition):

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). The words must and is to are not recommended.

John, I suggest that the point should be made as diplomatically as possible that the requested change is exactly the opposite of accepted industry usage and official industry definitions and recommendations, and is likely to lead to confusion and unintended interpretation. If forced to comply despite this, document the point in a written CYA communication to the agency and keep a copy in a secure location.

Recently I read that in the U.S., shall (but not will) conveys an imperative sense (a command), whereas in Britain, it is just the opposite: in the U. K., will is the imperative, not shall. Perhaps the attorney has been unduly influenced by legitimate-but-British authorities, not realizing this fundamental transatlantic difference.

Shall and will yields about 8,650 hits on Google, some of which are mind-boggling discussions that touch on this very issue, among others. The two words have quite a history. As will be seen below, the wrong understanding could be a life-or-death matter. For an exhaustive treatment from Fowlers The Kings English (1908), go to SHALL AND WILL - Collection at Bartleby.com

For a striking example of the inherent misunderstanding with which this is fraught, go to http://202.186.86.35/services/printerfriendly.asp?file=/2004/8/11/features/8537335.asp&sec=features, where you will find the following (in which will is evidently used in the older sense expressing resolute determination or force of will about ones own action, and shall is an imperative, albeit in this instance a negative one):
THERE is an ancient story, which all students of English are forced to hear. It goes like this: a swimmer gets into difficulties. He cries out: I will be drowned, and no one shall save me! All who hear him turn away and leave the wretched fellow to his fate. That is because they believe he means it, and that he intends to drown. These tough-minded grammarians take it that the unfortunate swimmer is intent on suicide, and that it is none of their business.

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Shelby - thank you! You have renewed my sometimes flagging enthusiasm for specifications language. Now if only the attorneys would likewise determine that the specifier’s language is equally intentional, and none of their business! I will write shall, and no one shall stop me!

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Ain’t it ironic, that any specifier, whose sole test of competency is CSI formats, is automatically assumed to know more about product application than the tradesman who work with it every day.

What goes around comes around.

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Sheldon In my mind the agreement, specifications, drawings, addenda, and subsequent modifications are all the same thing contract documents. The parties are agreeing to perform in accordance with the contract documents, and the phrase agree to would appear to be a suitable replacement for the word shall.

Of course, we are talking of a public sector client, most likely with their own set of contracts, forms, and rules of the game. The clients attorney will have the responsibility to defend or advocate for the client, and if the word shall has the potential to cause linguistic heartburn, then he certainly has the responsibility to the client to advise the design team against using the particular word.

That said, I concur with others that simple, imperative language is preferable for technical specifications and notes on drawings. The task of excising the word from my specifications would be easy, especially since the frequency of appearance is rare. Changing the mindset of those authoring notes on the drawings is another matter!

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John: From your comment about your infrequent use of “shall” I assume you don’t use “agree to” either. Yes, the contractor, in signing the agreement, does agree to do what’s required by the contract documents - but then the logic of not using “shall” kicks in, i.e., everything is required and agreed to. If that’s the case, then why say it, especially only in some cases? If it’s needed for one requirement, it should be required for all, and we’d end up with every sentence beginning with “The Contractor agrees to…”

I also use “shall” on rare occasions, when it’s much quicker to clarify something that way than by writing a couple of long sentences. That doesn’t happen often when using imperative mood.

One of the things some of my consultants do that drives me crazy is use several words for the same thing, i.e., shall, should, must, is to, will, and agrees to. I was told of a court decision in favor of a contractor who argued that since some requirements were specified using “should” while others used “shall”, they weren’t mandatory, and he was justified in ignoring those he felt were too difficult.

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Why not take up a collection to buy this attorney the new CSI PRM?

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My PRM arrived in just minutes ago in today’s mail - I’ll finally get to find out what’s on the CD!

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Mine came yesterday - looks like everything’s on the CD, also a handy glossary!

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The note on the drawing reads The wall shall be painted. I understand the concept that the word Shall is to be interpreted as a statement requiring an action by the Contractor, HOWEVER, when used as in the example above, I would be hard pressed to argue that as a direct instruction telling the contractor to paint the wall! To me it sounds like a quote from the Bible and will be done as an act of God (I hope you dont reject a submittal from Her).

Further, The wall shall be painted (5 words); Paint the wall (3 words); Paint (1 word). Why would anyone want to write or type 5 words when three, or even one, is sufficient? Keeping with the spirit of this topic, I guess the note would actually read The Contractor shall paint the wall, right? Thats Six words!

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or “The Contractor agrees to paint the wall” to make it seven