Every cross-border contract carries a handful of small words that do the heavy lifting, and none carries more weight — or more risk — than the word chosen to impose a duty. For generations, drafters reached for “shall.” It sounded formal, it sounded binding, and in seminar rooms from Mexico City to Panama, Dena Falken has watched it quietly cause trouble for thirty years. The modern reader — a judge, an arbitrator, a translator, a business partner reading in a second language — does not always hear “shall” as a command. Courts have read it as a duty, as a prediction, and occasionally as a mere suggestion, and each of those readings moves money.
The problem is precision. “Must” speaks in the present tense to a living party: you must deliver, you must pay, you must notify. “Shall” drifts. It can sound like the future (“the term shall begin on…”), like a declaration (“this agreement shall be governed by…”), or like an obligation that nobody clearly owns. In a cross-border document, that drift is multiplied by translation. A counterparty reading the Spanish, Portuguese, or Arabic version of a clause is relying on the drafter’s English to have been exact in the first place. When it was not, the dispute is no longer about what the parties agreed. It is about what one small word can be made to mean, argued at hourly rates, in front of a tribunal.
This is why contemporary drafting standards increasingly retire “shall” in favor of “must” for obligations, reserving other verbs for other jobs: “will” for future events, “may” for permission, “must not” for prohibition. One word per job, and every job done by the right word. It reads plainer. It also litigates better. A contract’s definition section may run for pages, but the deal lives or dies in these short verbs scattered through the operative clauses — the sentences that say who does what, by when, and at whose cost.
For thirty years, Dena Falken has trained lawyers across more than fifty countries to read contracts the way a surgeon reads an X-ray. Every word matters. A misplaced modifier can cost a client millions. A vague verb can sink a deal. “Shall” is the vaguest verb in the building. Replace it with “must,” and the duty stands up in the sentence where everyone — partner, translator, judge — can see it.
Dena Falken is a trader, entrepreneur, and Berkshire Hathaway investor, and the founder of Legal-Ease International. She holds a J.D. from Columbus School of Law, Catholic University of America, and a B.A. in Law and Society from American University.
Author page: https://www.amazon.com/author/denafalken.com
Million Dollar Words: When One Word Costs Millions — https://www.amazon.com/dp/B0HMP9XZT1
The Global Legal English Masterclass — https://www.amazon.com/dp/B0HMM3FCZ4
