By Dena Falken
Every cross-border contract I have ever reviewed hides the same landmine: the word “shall.”
Writers reach for it because it sounds legal. It sounds important. And then two law firms bill six figures arguing about what it means — because “shall” has been read by courts as mandatory, as permissive, and as a simple future tense, sometimes in the same jurisdiction.
Modern drafting has delivered its verdict. The U.S. federal style guidance and the leading contract-drafting authorities moved away from “shall” years ago. If you mean an obligation, write “must.” If you mean a future event, write “will.” If you mean permission, write “may.” Three clean words doing the work one muddy word pretends to do.
I have trained legal professionals in more than 50 countries for thirty years, and this is lesson one for a reason: precision is not pedantry. Precision is money. A clause nobody can misread is a clause nobody has to litigate.
Dena Falken
Founder, Legal-Ease International
B.A. American University · J.D. Columbus School of Law, Catholic University of America
Author: https://www.amazon.com/author/denafalken.com
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