Using the word "shall" in specifications

Archive of Older Topics Archive - Specifications Discussions #2
21

As Doug points out, just using shall isnt enough, if it isnt used correctly. The wall shall be painted seems to leave open the question By whom? and to some may sound more indicative future than imperative. It lacks the directness of the Contractor shall paint the wall), let alone the force of paint the wall, which is clearly understood as a command directed at the Contractor.

I wonder if the attorney may have misunderstood someones comment that shall should be avoided by using the imperative wherever possible, and understood that to mean that one should say that the contractor must do whatever…

Thou shalt not use shall, ‘will,’ must or is to wheresoever the direct imperative verb wilt do…

22

Or how about “The Contractor shall agree to paint the wall.” (8 words)

23

What chance do we have of getting anybody but anal-retentive spec writers and attorneys to care about the proper use of language?

24

All it takes is one highly publicized lawsuit that hinges on the particular use and definition of a word. The word “supervise” comes to mind.

25

So do the words “is” and “alone”…

26

How about: “Wall: Paint”

Two words and one puncutation mark.

“Less is more!”
-Mies

27

Thanks for all of the input.

I have checked Black’s Law Dictionary, which has this as it’s first definition for shall: “1. Has a duty to; more broadly, is required to.” In addition, Black’s usage note says that this is the only sense acceptable when drafting contracts. Black’s has no definition for must, and outside of the noun form, no definition for will.

The Merriam Webster definition is: “2a – used to express a command or exhortation b – used in laws, regulations, or directives to express what is mandatory .” Merriam Webster defines will as used to express desire or choice.

We’ve decided to take the route suggested by Anne and write a letter explaining our position as regards our documents. I don’t care (too much, anyway) what they do with their contract conditions. Unless they direct us in writing to make the change, it’s staying as is. We’ll see how that goes!

In response to the many who noted that it is preferable to avoid the use of shall altogether: We’re very aware of that, and only use shall where other constructions become too awkward or unclear. (And occasionally where we haven’t gotten around to cleaning up old lingering phrasing.) Though there aren’t very many occurances, I don’t want to have to search through and replace all these instances every time we issue a project manual on this program (which is expected to be two to three times per year.) To me, this sort of thing is purely busy work and a waste of everyone’s time.

28

My travels in legal circles yields: Until the end of the 17th century, both “will” and “shall” were used interchangably. Then, the scholars of the day decreed that “shall” in the 1st person (“I” or “we”) would indicate futurity, but in the 2nd and 3rd persons (“you,” “he/she,” and “they”)“shall” meant “must”. On the other hand, “will” meant the exact opposite.

18th century grammarians enthusiastically adopted this directive and the “rule” was placed in copybooks. One must understand that 18th century grammarians felt their mission was to “purify” language and prevent “deterioration”. Eventually, prescriptive grammarians ignored the distinctions between “will” and “shall” in the 1st, 2nd, and 3rd persons, and declared that “shall” meant “must” in all cases.

Along the way, legal drafters adopted the mandatory sense of “shall”, and that has caused trouble in legal construction ever since. The question of why legal drafters have not long ago substituted “must” for “shall” can only be answered by their reliance on precedent, the use of language previously used. Court decissions dealing with the words “shall” and “may” reveal a hodgepodge of interpretations. Often courts have construed “shall” as mandatory. But courts have also held “shall” to permissive.

To eliminate confussion, follow the legal credo “he who has the best paper trial wins”, and simply define your meaning of “shall” and “will” in your Division-0 or Division-1 Documents. Case closed!

29

I consulted with my attorney, Lawrence Pilon, Esq. in Chicago. Here was his response. Larry said I could quote him but that his response is not meant to be legal advice since he does not practice law in California.

"I smell a fish. in my opinion any attorney who wants all of the "shall"s changed to "will"s (in a document that might wind up in front of a judge) knows that those two words have different legal meanings, and that a judge would know that too. This attorney obviously (to me, at any rate) wants to remove the mandatory intent of the language, for whatever reason.

It would look even worse if (maybe after a round or two of discovery) it were discovered that there were two versions of the document floating around that show that, at some point in negotiations, all of the "shall"s were changed to "will"s. The judge would almost certainly conclude from this that whoever changed the words did so with the specific intention of making the provisions in question non-mandatory.

If you truly want a “plain English” document, that a great idea. You must, however, make sure that your lawyer goes over the document to make sure that it is clear that whatever provisions are mandatory clearly remain so after the language change.

The reason why legal documents are full of “legalese” is not because lawyers want to sound important, its because certain words and phrases have clearly understood legal meanings. If you mean “shall” (in its legal sense), say “shall,” even if it makes you sound like a lawyer. The judge will understand."

30

After reviewing the dialog in the discussion I am beginning to wonder if we should send our documents for legal review and comment. Where I am heading is that the statement was made that the drawings and specs are considered contract documents. If so, then should they, too, be reviewed by the legal counsel for correct legalese? The client’s attorney wants certain language in the specifications. Since the specifications are not a stand alone document, and require the drawings, then maybe it would be prudent to send the drawings and the specifications to their legal council for review.

Years later after both parties legal councils fight back and forth over the language in the drawings and specifications, then and only then will the project go out for bid.

While the specifications and drawings are contract documents, they are also construction documents. They must convey information to individuals to construct buildings. While I agree that these things might end up in court, but to write them “to” be in court might not be right way to go. There are way too many discussions of off-shoring to have to explain to that person in India the “legalese” of shall vs. will or must.

31

By definitions, the Drawings and the Specifications are a part of the Contract Documents (see AIA’s General Conditions of the Contract for Construction). While the executed Agreement and contract conditions deal largely with specifics of time, money, and terms and conditions, the Drawings and Specifications deal with that part of the contract which defines the scope of what the Contractor will do for the Owner (I know this is a little on the simple side, but bear with me). Attorneys and judges are well aware that the Drawing and Specifications, while they are “legal” (more correctly, “contract”) documents, their form and content is largely defined by standards of practice, custom, and use. There are “terms of art” (such as the word “wythe”) which cannot be found in a legal dictionary but are commonly understood in the construction industry. Any attorney who wants to dictate the precise nomenclature of Drawing annotations either has too much time on his hands or an open-ended hourly contract.

32

the city attorneys in chicago have begun to require the word “must” in our contract language. It has largely been ignored as far as I know, however, I wonder what convention these attornies are going to.

33

Something’s afoot in the field of the law, and in part it apparently has to do with something that happened in California on January 1, 2001. What was it? Further searching turns up this:

Thoughts on “shall” from Joe Kimble. If you want to discuss this with him, send him an e-mail [kimblej@cooley.edu]:

“Shall” has three strikes against it.

First, lawyers regularly misuse it to mean something other than “has a duty to.” It has become so corrupted by misuse that it has no firm meaning.

Second – and related to the first – it breeds litigation. There are 76 pages in “Words and Phrases” (a legal reference) that summarize hundreds of cases interpreting “shall.”

Third, nobody uses “shall” in common speech. It’s one more example of unnecessary lawyer talk. Nobody says, “You shall finish the project in a week.”

For all these reasons, “must” is a better choice, and the change has already started to take place. The new Federal Rules of Appellate Procedure, for instance, use “must,” not “shall.”

For a good discussion, see Bryan Garner, A Dictionary of Modern Legal Usage (2d ed. 1995), pages 939-942.

And this: 2004 California Rules of Court…Introductory Statement…Throughout the rules, “shall” and “must” are mandatory, “may” is permissive, and “should” indicates a nonbinding recommendation. “Will” indicates a future contingency or predicts action by a court or judicial officer in the ordinary course of events, but does not signify a mandatory duty. Whenever “must” is used in a new rule or an amendment to a rule with an effective date on or after January 1, 2001, it is synonymous with “shall” as used in the rules before that date… All of the California Rules of Court have the force of law.

And this: 2002The Introductory Statement is amended to reflect the recently adopted council policy on the use of must instead of shall. The amendment also clarifies that local rules declaring optional council forms to be mandatory are preempted by rule 981.1, and reinforces the distinction between forms adopted for mandatory use and those approved for optional use.

So, just as it is with a lot of other things, here it appears to be the lawyers’ fault, for misusing, abusing and corrupting a perfectly good and honorable word to the point that it no longer means to many what it should to all, ultimately forcing the rest of us to change.

Lawyers. California. Mighta known.

34

I was once told by some experienced spec writers to avoid the use of the word “shall” in specifications!
Since specifications are supposed to be written to the G.C. (ignore C.M’s for now, instead of witing the following:

“Contractor “shall” perform the following…”

It should be written:

“Perform the following…”

This is pretty basic, but I don’t have the time to delve deeper.

As for California lawyers, nough said!

35

This certainly raises some interesting (if not rhetorical) questions:

  1. Is the AIA Contract Documents Committee aware of this?
  2. Which word will appear in the new '07 AIA Contract Documents?
  3. If “shall,” will they then be frowned upon by California Law (or attorneys in general)?
  4. Possible revision #__? to the new PRM / MOP?

Stay tuned . . .

36

Im happy to say that I dont understand California attorneys.

It has always been my understanding that construction law has its basis in contract law. The signing of an agreement by two competent parties to perform a specific task is an act where each party mutually accepts certain conditions as set forth in the contract documents. Contested contracts always [?] go first to the contract documents, if they exist, for relief provided the contract documents do not violate any statute. If the contract documents are properly prepared containing the appropriate definitions of terms applicable to the contract, either specifically defined within the contract documents or by recognized industry standard or customary usage, then those terms apply to the enforcement of that specific contract. Seems clear to me.

Like the old commercial say, Wheres the beef?

37

I thought I’d let the group know what the final outcome was with regard to use of “shall” in our specifications. Not surprisingly, I lost the argument with my client. He forwarded to me an e-mail from their outside legal counsel that directed us to get rid of the offending term. But the client greatly appreciated my carefully-worded and well-documented letter anyway because he didn’t really like the City attorney’s view. So, we “scored points” by making the argument and by making the necessary changes. (Actually, we added a definition to the Summary Section for the moment, since there wasn’t time to do the whole revision process and get the docs out to bid. But the next phase must have the changes.)

The attorney’s e-mail included a few citations, and I did some other research on my own. The move away from the use of “shall” is, indeed, part of the plain-English movement in the legal profession. There are a few lawyers around the country who are spearheading this movement. Surprisingly, in spite of the apparently clear definition in Black’s Law Dictionary, there are many cases where “shall” is used incorrectly. The thinking is, essentially, “since lawyers can’t be counted on to use ‘shall’ correctly, they shouldn’t use it at all.” In addition, the recently-revised “Federal Rules of Court” and the “California Court Rules” call for use of terms other than “shall” when drafting rules, due to its ambiguity as used.

The legal citations given to me were articles by Robert Eagleson & Michaele Asprey; Jim Main; and Joseph Kimble. (If you want them I’ll forward them, but unless you have access to legal journals–I don’t–they’re not that useful.) Separately, I have looked at publications by Bryan A. Garner of LawProse, Inc. in Dallas, borrowed from an attorney here in Monterey, CA. (Yeah, I’m in California today.) I also found this reference on the web: http://www.plainlanguagenetwork.org/kimble/modest.htm. This article by Kimble has a brief section on the question of “shall” versus “must” in part 11. Bryan Garner has also written a good book called Garner’s Modern American Usage, which is a general reference, not a legal one. Garner’s book has a good discussion on “shall”. He notes that it’s used in “legal documents, in which shall purportedly imposes a duty . … shall seems likely to persist, but in law it is declining because of increased recognition of its hopeless ambiguity as actually misused by lawyers.”

After reading all of this I concluded that, as used by the specifying community, “shall” is most often correctly used. But I was convinced, anyway, that there are much better choices. The few remnants of “shall” have got to go. I’ll be weeding them out of our office masters over the new few months. I will restructure most sentences that use it, and in some cases replace it with “must” or “is required to” or another term (I prefer the shortest ones). I also plan to discuss the issue informally with AIA regarding their contract forms, and ARCOM (since I’m on the Masterspec Architectural Review Committee). That’s not a commitment to changing those documents, but merely talking about what I’ve found out.

38

Thus another reason to get rid of the word “shall” altogether!

39

John,
Thanks for the explanation. According to the old MOP FF/170.2, “must” is not recommended. Is this the case with the new “The Project Resource Manual”?

Tommy

40

For a term that isn’t recommended for use in the old MOP, the word “must” sure gets a workout in the PRM. I used the search feature on the PRM disk and found “must” used 486 times in the book. Had to search for “grammar” to find the small paragraph on the proper use of language (paragraph 5.9.5.4). It did not mention “must” at all but did discourage the use of “Contractor shall”.