Nearly three decades of proofreading legal documents — a case for dropping shall from your contracts
“Shall” is the most misused word in legal English. Courts, regulators, and drafting authorities – including Bryan Garner’s Guidelines for Drafting and Editing Legislation and the US Plain Writing Act of 2010 – have urged lawyers to stop using it, because “shall” is routinely interpreted as mandatory, permissive, or merely predictive depending on context. The cleaner approach, sometimes called the ABC rule, is to replace “shall” with “must” for obligations, “will” for future facts, and “may” for permissions. Dropping “shall” does not weaken a contract; it removes a known source of ambiguity that has generated decades of litigation.
There is a word that appears in millions of contracts, government regulations, corporate policies and professional documents every day. It looks authoritative. It sounds serious. It signals, at least to its users, that something important is about to be required. That word is shall.
The problem is that shall does not actually do any of those things reliably. It sounds serious precisely because it is archaic, and it is archaic because ordinary English speakers stopped using it decades ago. Outside formal writing, you encounter shall almost exclusively in two contexts: period dramas set before 1950, and legal documents. Neither is a particularly strong endorsement.
This piece makes a case for dropping shall from your writing. Not because word choice is a matter of personal taste, but because shall is genuinely ambiguous, inconsistently used and increasingly at odds with the plain English principles that good professional writing now follows. There are better options and they are not difficult to learn.
Shall has a long history in English. In Old English, it carried a sense of obligation, where sceal meant something close to “is obliged to”. Will, by contrast, expressed intention or desire. For centuries, English grammar books preserved a distinction: shall for the first person (I shall go), will for the second and third (you will go, she will go). Reversing them was supposed to signal emphasis or command.
By the twentieth century, that distinction had collapsed in everyday speech. Will took over almost entirely as the standard marker of futurity, regardless of grammatical person. Shall retreated to two remaining roles: light conversational suggestions (“shall we have lunch?”) and formal written obligations. The conversational use has continued, though it sounds slightly old-fashioned to many ears. The formal written use, however, multiplied without any corresponding precision about what it was actually meant to convey.
The result is a word that, as the Oxford English Dictionary entry records across more than five pages, carries at least five distinct meanings depending on context. Courts in the United States, the United Kingdom and elsewhere have interpreted shall as meaning must, may, will and simply is, in different cases involving the same word. Bryan Garner, editor-in-chief of Black's Law Dictionary and the most widely cited authority on legal writing in English, has written that “in most legal instruments, shall violates the presumption of consistency, which is why shall is among the most heavily litigated words in the English language.”
The standard rule of contractual interpretation is that a word used repeatedly in a document is presumed to bear the same meaning throughout. Shall is routinely used throughout documents with three or four different meanings simultaneously, none of them flagged or distinguished.
Consider a typical commercial contract. Shall appears to impose obligations on parties. It appears to describe future states (“the term shall commence on”). It appears to restrict conduct (“neither party shall assign this agreement without consent”). And it appears, occasionally, to confer rights. Each of those uses carries a different meaning in law. A reader applying ordinary rules of interpretation is left to guess which meaning applies to each use, and guesses of that kind end up in disputes.
The US Federal Plain Language Guidelines describe shall as “officious and obsolete” and note that it “can indicate either an obligation or a prediction.” That ambiguity is not a feature. It is a design flaw.
Shall has largely disappeared from spoken English and from most written English that is not explicitly legal or regulatory. When people encounter it in a document, it signals immediately that they are reading something written in a specialised register that is not quite the same as ordinary language. That distance is not neutral. It can make documents harder to read, slower to process and more likely to be misunderstood.
For non-native English writers in particular, this matters. A word that already sits at the edge of everyday English usage is significantly harder to deploy correctly than one that appears in normal professional prose. Shall carries no instinctive meaning for a speaker of Polish, German, Romanian or French, because there is no equivalent word in those languages that functions in the same way. Writers working in English as a second language tend to copy the legal convention without interrogating it, which is precisely how inconsistent use spreads.
A single document using shall throughout for obligations, with no mixing, is at least internally coherent. The deeper problem is that this rarely happens in practice. Translated documents, documents assembled from multiple precedents and documents drafted quickly under pressure all tend to mix shall, will and must without a consistent system. When courts or counterparties find that mixture, they are entitled to ask what the difference means. The answer is usually that there is no intended difference, which is a poor position to be in when someone on the other side may be looking to pick holes in the document.
“The Seller will deliver the goods within 14 days. The Buyer shall inspect them within five business days of delivery. The Seller must issue a VAT invoice on the date of delivery.”
Three obligations, three different modals, no apparent reason for the distinction. A careful reader will look for one. A court may find one, even if none was intended.
Plain English drafting does not mean making documents simple or stripping out necessary complexity. It means choosing words that carry clear, consistent meanings and that do not force the reader to guess. On that measure, shall performs badly and its replacements perform considerably better.
Must is the clearest English word for a binding obligation. It cannot be used to express futurity, which immediately removes the main source of shall’s ambiguity. When a reader sees must, they know that an obligation is being imposed. There is no competing interpretation available.
“The Buyer must pay the Purchase Price within 30 days of the invoice date.”
“The notice must be in writing and must be delivered to the address specified in Schedule 1.”
The US federal government adopted must as its standard for expressing legal requirements following the Plain Writing Act of 2010. Legislative drafters across Australia, Britain and Canada had already moved in the same direction under what is known in drafting circles as the ABC rule, named precisely for those three jurisdictions. The Federal Rules of Civil Procedure and the Federal Rules of Evidence in the United States were revised to remove shall entirely. The advisory notes explain that “the word shall can mean must, may, or something else, depending on context” and that replacing it removes avoidable ambiguity.
Will works well for describing what will happen as a consequence of an event or condition, rather than what a party is obliged to do. It can also express a promise or commitment in a contractual context, as long as there is no risk that the sentence could be read as merely expressing intention rather than creating an obligation.
“This Agreement will terminate automatically on the Expiry Date.”
“The purchase price will be calculated in accordance with Schedule 2.”
The distinction matters. Telling a party that it “must pay” is firmer and clearer than telling it that it “will pay”, particularly in a document that also uses will to describe automatic consequences. Where there is any risk of ambiguity, must is the safer choice for obligations.
May confers a right or a discretion. It is one of the clearest and least contested modals in legal drafting, and its meaning translates well across legal systems and levels of English proficiency.
“The Seller may terminate this Agreement on 30 days' written notice.”
“Either party may refer a dispute to arbitration under clause 18.”
The only caution with may is that it should never be used where must is intended. The two are not interchangeable, and mixing them suggests that some obligations are optional when they are not.
Not everyone accepts the case against shall, and it is worth being honest about that. Some highly regarded authorities on contract drafting, including Kenneth Adams in his Manual of Style for Contract Drafting, argue that shall used consistently and exclusively to impose obligations on the subject of a sentence is precise and efficient. The test they propose is whether you can substitute “has a duty to” without changing the meaning: if you can, the use is correct.
That position is defensible in theory. The difficulty is that it depends entirely on discipline. Shall must be used correctly in every single instance across a document that may run to dozens of pages, drafted under time pressure, amended by multiple people and adapted from existing precedents. In practice, that discipline is rarely maintained. The ABC rule was named not because Australian, British and Canadian drafters thought shall was wrong in principle, but because they concluded that lawyers could not reliably be trained to use it consistently enough to make the distinction worth preserving.
There is also the matter of register. Even if shall is used with perfect discipline, it signals to many modern readers, particularly those outside the legal profession, that the document is written in a specialised and somewhat archaic register. That signal is not always helpful. A commercial agreement read by a CFO in Frankfurt or a compliance manager in Warsaw does not benefit from language that sounds as though it belongs in a Victorian statute. Must communicates the same obligation in language that every professional reader understands immediately.
If you are drafting a document from scratch, the decision is straightforward. Use must for every obligation you want to impose on any party. Use will for future states and automatic consequences. Use may for permissions and discretions. Apply those choices consistently throughout. The document will be clearer, quicker to read and less likely to generate arguments about what any individual word was meant to convey.
If you are working with an existing template that uses shall throughout, the minimum requirement is consistency. A document using shall correctly and consistently for obligations is less dangerous than one mixing modals without a system. If you are reviewing or proofreading a translated document, inconsistent modal use is one of the most reliable indicators that the document needs attention before it goes to the other side.
The word shall is not going to disappear from legal documents overnight. It has too much institutional momentum, too many template libraries behind it and too many senior lawyers who learned to use it and see no reason to change. But the direction of travel is clear. Government agencies on both sides of the Atlantic have removed it. Plain language drafting movements in every common law jurisdiction have argued against it. The most cited authorities on legal writing in English recommend deleting it.
Shall had a long run. It served English well enough, in its time. But that time is passing, and the words that replace it are simpler, more precise and easier for every reader to understand. That is not a minor stylistic preference. In professional writing, clarity is the point.
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