Shall, will, may, must...

Property PSL documents try to avoid use of the heavily overused word “shall”. If you spot one, let me know. The word is rarely used in every day speech, so why should it be used in a legal document? Good drafting practice involves writing in the present tense (e.g. not “if the Tenant shall fail to observe its covenants” but “if the Tenant fails…”) and using the word “must” to create an obligation (e.g. not “the Tenant shall decorate the Property…” but “the Tenant must decorate the Property…”).

Used inappropriately, the word can create ambiguity, leaving doubt as to whether the writer intended an obligation, or merely an expression of future intent. For a discussion of the confusions that can arise in legal documents over the use and misuse of the words “shall” and “will”, see an archived article from the NLJ at http://www.law-office.demon.co.uk/art%20shall-1.htm/ by Roderick Ramage. For a modern example of how the word can give rise to costly arguments of statutory interpretation, see Greenweb Ltd v Wandsworth London Borough Council [2008] EWCA Civ 910 and the (failed) argument that the word “shall” in section 15 Land Compensation Act 1961 really meant “may”.