The goals of good legal drafting – including clarity and consistency – are not easy to achieve. As noted in previous columns, achieving these goals can be particularly challenging when the lawyer is faced with many choices between words and phrases that often appear to have the same meaning.
‘Shall’ or ‘must’ in English
One of the issues that continue to excite lawyers in English-speaking jurisdictions is choosing between “shall” and “must”. Does each of these words mean the same thing?
If so, is “must” just the modern version of “shall”? If they do not mean the same thing, what is the difference between them, and when should each be used?
“Shall” is certainly more traditional and formal than “must”, particularly when it is used in legal documents. Unlike “must”, however, it has different usages in different contexts. For example:
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- When an authority or power issues an order or decree, as in the following (“shalt” is the archaic equivalent of “shall”):
Thou shalt not steal.
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- When a party to a contract undertakes an obligation to do something, as in the following:
The purchaser shall pay the purchase price immediately upon delivery of the goods.
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- When it refers to an action that will take place in the future, as in the following:
I shall speak to you tomorrow. or We shall meet again tomorrow.
Interestingly, under the traditional rules of English grammar, “shall” (not “will”) was the correct word to use with the first person pronoun (i.e. “I” and “we”) to mean future time. This practice is now relatively uncommon in the English-speaking world, although the British people are still inclined to observe it from time to time.
The second context above – namely, the use of “shall” when a party undertakes an obligation in a contract – is of greatest interest to the lawyer. Its use is still very common in commercial contracts, particularly in the United Kingdom and the United States. In other jurisdictions such as Australia, many lawyers prefer to use “must” in place of “shall”, particularly in the context of consumer contracts. This is because “must” is considered to be more easily understood by the lay person and therefore more consistent with ‘plain English’ principles.
But do the words mean the same thing and, if not, what is the difference? This is where the issue becomes somewhat controversial.
There are those who claim that there is no difference in substance between the two words and that it would be better to avoid the use of “shall” because of the different usages as outlined above. Others claim that there is a difference; namely, “shall” creates an obligation, whereas “must” simply refers to an obligation or requirement that already exists. In this context, “must” is equivalent to the phrase “is required to”, as in the following example:
An applicant must lodge an application form on or before the due date.
In the above example, the word “must” does not impose an obligation on the applicant to do anything. Instead, it makes it clear that if the applicant wishes to make an effective application, the applicant must lodge an application form on or before the due date.
The use of “shall” was recently considered earlier this year in an English case called BW Gas Ltd v JAS Shipping Ltd. This case has generated some excitement amongst the legal profession, since it highlights the reality that “shall” does not always impose an obligation and its meaning will depend on the context.
This case involved a ship charter (i.e. a contract for the hire of a ship). The parties to the dispute were the head-charterer and the sub-charterer. The head-charterer had chartered the ship from the owner and the ship had been constructed by another third party, the builder, under a building contract with the owner.
When the ship was delivered by the head-charterer to the sub-charterer, the sub-charterer discovered that certain items had not been installed in the ship. The sub-charterer claimed compensation on the basis that the head-charterer had not delivered the ship in accordance with the building contract. The building contract provided as follows:
The [relevant items] shall be supplied by the Owner on the Owner’s account.
The question in dispute was whether the failure to supply and install the relevant items meant that the ship had not been constructed in accordance with the building contract. In turn, this question depended on whether the owner had an obligation to supply the relevant items for instalment by the builder.
The court decided that the ship contract did not impose an express obligation on the owner to supply the relevant items and, consequently, there was no obligation on the builder to install them. Instead, the contract provided that if the owner did not supply the relevant items, the ship would be constructed without them but would still be constructed in accordance with the building contract.
On this basis, the court decided that the ship had in fact been constructed in accordance with the building contract and that the word “shall” in the above provision did not impose any obligation. In effect, the provision simply determined which party would be responsible in terms of the cost and supply of the relevant items if they were supplied by the owner. The provisions could be drafted differently – and more accurately – as follows:
If the owner requires the [relevant items] to be installed, they must be supplied by the owner on the owner’s account.
In this context, the word “shall” did not create any obligation under the building contract. I would argue that the word “must” would have been the more appropriate word to use, since the focus of the provision was not on creating an obligation, but on the requirements to be satisfied if one of the parties wished to exercise a right or achieve a certain outcome.
Another short example to illustrate the point: let’s say that a contract makes provision for a party to terminate the contract in certain circumstances. A lawyer might draft the provisions as follows:
A better way of drafting the provision would be as follows:
If either party wishes to terminate the contract, a notice of termination shall be delivered to the other party in accordance with Clause 23.
A better way of drafting the provision would be as follows:
If either party wishes to terminate the contract, it must deliver a notice of termination to the other party in accordance with Clause 23.
The position in Chinese
Like English, Chinese provides the lawyer with a wide choice of words when drafting provisions that refer to obligations or requirements. These include the following: bixu (必须), yingdang (应当), xuyao (需要) and dei (得).
Practice suggests that in mainland China, yingdang (应当) is generally used as the equivalent of “shall” in English and bixu (必须) is generally used as the equivalent of “must” in English. In Hong Kong, on the other hand, xu (须) is used more often than yingdang (应当) to mean “shall”, particularly in legislation.
In addition, it appears that the tone of bixu (必须) is stronger than yingdang (应当). On one interpretation, bixu (必须) implies that an obligation or requirement is absolute and unqualified, whereas yingdang (应当) implies that an obligation or requirement may be qualified (i.e. there may be circumstances in which the obligation or requirement does not apply). In this sense, yingdang (应当) imports the meaning of “should” in English. It is questionable whether this is the correct interpretation when yingdang (应当) is used in contracts, since there does not appear to be any basis on which to distinguish between qualified and unqualified obligations in this context.
An analysis of legislation in mainland China suggests that, broadly speaking, the words yingdang (应当) and bixu (必须) are used in the same way as the words “shall” and “must” in English. In addition, the word dei (得) is generally used in the compound bude (不得) to mean ‘must not’. A couple of examples are set out below:
The holders of rights in respect of immovable property shall provide the necessary convenience if the neighbouring rights holders must [i.e. are required to] use their land for purposes such as access rights.
(PRC Property Rights Law, Article 87)
A contract entered into in accordance with the law has legally binding effect on the parties. The parties shall perform their obligations in accordance with the agreement and must not unilaterally amend or terminate the contract.
PRC Contract Law, Article 8
Interestingly, the PRC Constitution appears to use both yingdang (应当) and bixu (必须) to impose obligations, as indicated in the examples below:
All state organs, the armed forces, each political party and social organization and each enterprise, institution and organization must abide by the Constitution and the laws. All acts in violation of the Constitution or the laws must be investigated.
(Article 5)
When exploiting natural resources and building enterprises in the autonomous minority nationality areas, the State shall consider the interests of the autonomous minority nationality areas.
(Article 118)
An interesting question is whether there is any difference in meaning between the two words in this context. I would be interested in readers’ views.
A former partner at Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School and is an associate director of its Asian Law Centre.
