I don’t have the final PRM, but in my draft copy, 5.8.2 Vocabulary (the last bulleted item) lists Shall and Will. It states that ‘will’ is for acts of the Owner or A/E, and ‘shall’ is for work required of the Contractor. “‘Must’ and ‘is to’ are not recommended.”
Not only does the PRM use “must” on many occasions, it also repeats information, and frequently uses complex sentences. It even includes illustrations! Horrors - how can this be?
The PRM is not a specification, nor is it a “legal” document; it does not express obligations of parties to a contract or state absolute conditions of performance. The PRM is simply a reference book that presents an overview of the construction process. As such, it is - and should be - written in narrative form, and need not adhere to the rules of a manual of practice for writing specifications.
Correct me if I’m wrong, but I think the discouraging of “Contractor shall” in the PRM is more for eliminating wordiness and encouraging the imperative form in specifications, rather than for any esoteric legal reasons. That being said, John’s explanation and the web article cited give me many reasons to think about the word “shall”. I did a word search of a recent Project Manual, and as much as I work to get rid of “Contractor shall”, I was amazed at how many times the word “shall” survived. Phrases such as “Lesser thicknesses shall be permitted…” and “Cumulative error shall not exceed…” populate the PM. However, before I purge my documents of the word “shall”, I think I’ll do some additional research. Maybe we should wait until the lawyers and judges work it out. But wait, thats no good, one of our Project Manuals will be the guinea pig.
Cumulative error: X inches maximum.
Sheldon, great response about the language of the PRM itself.
Don, in your example where you state “Phrases such as ‘Lesser thicknesses shall be permitted…’” that is an action of the architect (doing the permitting) and the real correct word would be “will” rather than “shall” just as noted by Curt above that shall is reserved for the contractor, will for the owner and A/E.
William
In the post that started this, John’s Bunzick’s “California public-agency client…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’…Has anyone…become aware of a change in legal approach with this word?”
Well, now we all have (those following this thread). The change has been explicit, and officially mandated, in certain jurisdictions.
Courts can and do establish rules for attorneys, court proceedings and court documents in their respective jurisditions. Those rules are limited. Similarly, legislative bodies commonly understand the word “language” as a term of art meaning “wording” or “verbiage,” in regard to bills and laws, but no one would want use of that jargon term to be required of everyone.
“Shall” and “will” have longstanding specific meanings by industry consensus (“shall” is imperative for the Contractor, “will” is “optional” for acts required of the Owner or Architect), and the use of “must” and “is to” are not recommended. The new Project Resource Manual/CSI Manual of Practice explicitly maintains the distinction. And, if any authority governs specifications practice and definitions of construction terms, the PRM/CSIMOP would be that authority, especially since this reflects the long-established professional standard. (SpecsIntact documents (for Army, Navy and NASA work) are predominantly “shall be” specs, despite the explicit and official policy that recommends use of imperative verbs. They have way too many “shall be’s” to warrant cleanup by users.)
A further pitfall of requiring “must” and banning “shall” is that the industry might retrogress, replacing imperative verbs with “The Contractor must…” In effect, we’d be back where we started, weighted down by legalese, just using a different term not without its own share of confusion.
Remember, “shall” came from legal terminology in the first place. Lawyers (not generally prone to being concise) used it routinely as an imperative phrase. The current problem with that legal usage apparently stems from widespread misunderstanding and misuse on the part of the legal profession, which blurred the distinction, as well as the recognition that many–perhaps most–non-lawyers aren’t even aware of the distinction. (I for one never quite grasped it in grammar school; I distinctly remember that it seemed counterintuitive.)
In such circumstances, using “must” for “shall” in legal documents may make sense. But the courts should stop short of practicing design without a license. (The late architect and specifier Clark Moore told of a meeting where an Owners attorney claimed the ultimate right to determine specifications content, on the ground that they were “Contract Documents;” which can be modified only by an attorney. Clark pushed the specs across the table, saying, “OK, you edit them.”)
Perhaps, in each Project Manual, we should call attention to the respective usages of “shall” and “will” within the CDs. In certain jurisdictions such as California, we might add that verbs in the imperative mood are generally directed to the Contractor as obligations, in other words, they are commands – mandatory requirements – with which the Contractor must comply.
There, you said it. By definition.
Actually, we did have language regarding the “style” of specifications as being in the imperative mood. That wasn’t enough. And while I’m sympathetic to the argument that attorneys shouldn’t practice design (they don’t want us to practice law, either), it is attorneys and the courts (judges are usually attorneys, too) who are doing the interpreting when something goes wrong. Therefore, we do need to take our cues from what’s going on in the legal profession. I am going to hazard a guess that the PRM’s suggestion to avoid “must” comes, ultimately, from legal sources back when the MOP was originally crafted. If the legal profession’s changing, slowly, we should too.
I’m not too worried about reverting to the-contractor-must types of construction in specs. If someone is paying close enough attention to this issue that they’ve decided to eliminate shall, they probably wouldn’t go back to the longer sentence constructions.
All of the reading I did also noted that even in common usage, “shall” and “will” have become synonymous. This is acknowledged in some dictionaries, and is part of the problem with using “shall”.
I also found discussions on the various meanings that “shall” has in legal writing. Even though we think that all of the uses in specifications and construction contracts of the word “shall” mean “is required to”, this is not actually true. In some forms, like “carbon steel shall not be used”, the term actually means that “permission is not given”. Shall also has the defect of having an unintended subject: The sentence “Notice to the Architect shall be made in fifteen days” has "notice as the subject, and depending on context could be misconstrued. The sentence “The owner shall be reimbursed for inspections required due to deficient work” has been interpreted as an entitlement, not a duty (which we intended to put on the contractor.) I’m just citing a few of the shades of meaning from some of my readings, but not as compellingly as they did. It’s much less straight forward than I thought when I delved into this subject.
Ultimately, though, I’m finding it very easy to avoid “must” in nearly all instances when recrafting sentences, so I’m not sure this is really very much of a concern.
And who represents the design professions in this scenario? The architectural profession has been led by the nose by developers for years - now we should let the attorneys take over?
Perhaps we should ask the courts how to define “provide” – another tricky word that has long been given a specific meaning in the context of specifications, but one that also needs to be defined in the documents. I’m sure they would love to furnish and install some wisdom on that…
was intended to be facetious. Sorry for the lack of clarity.
Don:
Sorry, I didn’t intend to make the statement sound so strong. I originally read your line as a facetious statement but the more I thought about the statement the more I remember over the years that the design professions have sat back on their hands where they should have taken a more proactive role.
Hope this doesn’t happen here.
Ron
I went over this discussion with a grand old structural engineer of the Imperative School. He and I readily agreed that attorneys have no more business practicing philology than they have practicing design.
However, why not extend that to cover theology?
His suggestion is that every “shall” should be replaced with “shalt”.
Barring objection from the ACLU, that might just do the trick.
(Let’s hope that in the thick of a dispute the owner and engineer do not wilt.)
With respect to Mr. Heineman, “shalt” is related to the 2nd person familiar (“you shall” and “thou shalt”). This is relatively archaic usage, and most of us have had contact with it only in archaic church language (the King James Version of the Bible or Cramner’s Prayer Book used by the Anglican Church). Most of this has been updated with revisions and new translations published between 1960 and 1990 although one may still run across it from time to time. Other languages have retained the 2nd person familiar for use in conversation between people who have a familial or intimate relationship. Its use is inappropriate in a formal or secular contractual setting. Use of this form is entirely inappropriate in writing specifications.
You’re kidding, right?
Thou shalt get a life.
Hither I pray that 'tis Squire Jordan’s tongue that hast been planted firmly in his cheek.
Dude, just do it. Ya know what I’m sayin’ ?
Like REALLY? That is SOOO HOT!? I just think words are sooo cool, ya’ know? We should use more of 'em? Really? 'cause it’s cool?
Actually, I wasn’t kidding, but…
Dude! I am, like, thoroughly intrigued (to the max) by the notion of, like, developing a specification section in, like, valspeak. It would be, like, so kewl, dude!
Have you picked up on Ron Geren’s article on this subject posted under “Other Newsletters and Articles”?