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Ken Adams and Shall

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'Has a Duty' Test

To determine if "shall" is being used correctly in a contract, Ken Adams proposes the "has a duty" test. This simple yet effective method involves replacing "shall" with "has [or have] a duty to" in the sentence. If the sentence still makes sense after this substitution, then "shall" is being used appropriately to express an obligation.

For example:

Original: "The Seller shall deliver the goods by June 1st."

Test: "The Seller has a duty to deliver the goods by June 1st."

This test helps drafters ensure consistency and clarity in their use of "shall" throughout a contract, reducing the risk of ambiguity or misinterpretation. It also serves as a practical tool for editors and reviewers to quickly identify instances where "shall" might be misused or unnecessary.

As Ken has pointed out to me “the nature of the test depends on the semantic context. At one extreme, it's really easy: "This agreement shall be governed ..." At the other extreme, it can get subtle.” MSCD has a section about that.

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"Shall Not Be Concerned To See To"

1/3/2022

[Updated 3 Jan. 2022] It could be gratifying when no one notices that I’ve screwed something up. No egg on my face! But instead, it’s a little disconcerting. No one cares! Or Serious egg on my face later, when I repeat the mistake in print! In the original version of this post (published in 2018), I misunderstood entirely the usage

Ken Adams

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Some Observations on a Blog Post About "Shall"

6/18/2021

I’ve mostly given up policing what passes for the marketplace of ideas—it’s too chaotic. But occasionally the algorithm tells me I might as well say something about something. So now, I’ll offer my thoughts on this post, entitled Canceling the Word “Shall” in Leases, Contracts and Legal Forms, on the Holland & Knight Retail and Commercial Development and Leasing Blog.

Ken Adams

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Revisiting the "Shall" Wars

3/22/2021

The other day, Alex Hamilton dropped this on Twitter: Using "shall" in contracts, as suggested by @AdamsDrafting, has become a shibboleth. There are those who want to be modern, and those who've done their homework and are actually being modern. — Alex Hamilton (@AlexHamiltonRad) March 10, 2021 It’s been years since I’ve written anything about use of shall in contracts.

Ken Adams

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An Example of Industry-Wide Elegant Variation: Ways of Saying Keep Confidential Information to Yourself

10/30/2020

I’ve written previously about “elegant variation.” Here’s what I said in this 2015 post: Elegant variation—going out of your way to avoid using the same word or phrase twice—is never a good idea. It’s particularly unfortunate in contract drafting, in which tone plays no part. If you wish to convey the same meaning, use the same word. If you think

Ken Adams

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Here's How the "Has a Duty" Test Works

8/20/2020

For 15 years I’ve been haranguing people about the has a duty test. I can be relied on to ask a given group, way too many times, What is the first diagnostic test? In my dreams, those in attendance respond in unison, boot-camp style: The has a duty test! Allow me to explain. The foundation of controlled drafting is how

Ken Adams

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Dual Verb Structures: "Shall Grant and Hereby Grants"

12/20/2019

In this post a couple of weeks ago, I belatedly introduced the topic of dual verb structures. Here’s another dual verb structure: shall grant/assign and hereby grants/assigns (and variants). It appears in provisions relating to intellectual property: Upon the completion of such transfer, Xenon shall, and hereby does, assign to Neurocrine all such Regulatory Materials … Effective on the Collaboration

Ken Adams

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A Dual Verb Structure: "Shall Not Be Entitled To and Shall Not X"

12/1/2019

[Updated 8 Dec. 2021: Ignore this post! I got it wrong! I misunderstood the function of not be entitled to. It would make sense to delete this post, but instead I’ll keep it here as a monument to my frailty. Or something.] Let’s talk dual verb structures. I’ve written about them previously. For example, see this 2007 post about be

Ken Adams

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Another Skirmish in the "Shall" Wars

8/24/2017

Today a reader posted the following comment (found here): Ken, I have been pushing your rules about shall and must since I started drafting contracts. Recently, a colleague said that we should use must exclusively. He pointed to the following link to bolster his case: https://www.faa.gov/about/i… I wanted to point it out for your opinion. Thanks If you want to

Ken Adams

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"Shall Means Shall"?

6/28/2017

I’ve stated elsewhere (for example, in this 2014 article) the advantages of using shall to express an obligation imposed on the subject of a sentence, if the subject is a party to the contract. The primary advantage is that shall gives you an extra tool to work with. Instead of using will or must to express multiple meanings, you use

Ken Adams

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Revisiting the "Shall" Wars: Does "Shall" Mean "Should"?

3/10/2017

In MSCD 3.47, I say the following: For purposes of business contracts, as opposed to statutes, it’s unlikely that anyone could successfully argue that instead of expressing an obligation, a particular shall is “discretionary” and means may or should. Well, courtesy of @mrsalzwedel I learned of PacifiCorp v. Sempra Energy Trading Corp., No. CIV-04-0701 (E.D. Cal. 2 July 2004), an opinion

Ken Adams

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A New Case on Expressing Conditions and the Role of "Shall"

4/28/2016

From reader Ben King, general counsel of Jive Communications, I learned about a 2016 opinion of the Supreme Court of Utah, Mind & Motion Utah Investments, LLC v. Celtic Bank Corp., 2016 UT 6, 367 P.3d 994 (PDF here). The moral of this particular story is that if you want a contract provision to be interpreted as a condition, you had better make sure it’s worded

Ken Adams

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"Will" Versus "Shall" Is Only Part of the Story

4/18/2016

Yes, it’s time to return to the shall wars. Thanks to the article by Lori Johnson that I discuss in this post, I’d now like to consider a court opinion that I overlooked when it first appeared. I’m referring to Lubbock County Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297 (Tex. 2014) (PDF here). The Court Opinion

Ken Adams

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"Shall Not Permit"

5/27/2015

I noticed this post on Keith Bishop’s California Corporate and Securities Law blog, on the meaning of the verb “permits” in a proposed change to the securities regulations. Here’s the relevant bit of Keith’s post: The verb “permit” means to give assent to some action or event. This implies an affirmative action on the part of the registrant. Applying this

Ken Adams

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"Regard Shall Be Had To"

4/20/2015

Reader Estela Mora Alfonsín sent me the following request: I am writing to ask if you could shed some light on the usage of the expression (apparently very frequent in legal writing) “regard shall be had”. Honestly, I have not seen it in many contexts but one of my teachers at the translation course I am taking insists in us

Ken Adams

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"Shall Without Undue Delay" (Including a German Angle)

4/6/2015

Yesterday I unleashed on an unsuspecting world the following devastating insight: Instead of "shall without undue delay," I'd use "shall promptly". — Ken Adams (@AdamsDrafting) April 6, 2015 That’s straightforward enough—if you can express something positively instead of negatively and save a couple of words in the process, then you should do so. I had planned to leave it at

Ken Adams

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"Shall Seek"

2/16/2015

Welcome to shall seek, yet another unhelpful alternative to saying that a party has to use reasonable efforts to accomplish something. With shall seek, you’re saying that someone has to try to do whatever it is, but you don’t provide a standard. In each of the following examples from EDGAR, I’d use instead reasonable efforts: When placing such orders, the

Ken Adams

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A Reminder About "Shall Cause"

2/4/2015

Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here). Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with

Ken Adams

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"Shall Not ... Unless" Versus "May ... Only If" (Updated!)

12/9/2014

[Updated December 9, 2014] One of the privileges of blogging is that it gives you the opportunity to talk utter BS without doing much damage. A case in point is this post, originally published on August 4, 2014. To recap, the issue was whether one of the two following alternatives was preferable to the other: Acme shall not sell the Shares unless

Ken Adams

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My New Article About "Shall"

9/16/2014

The current issue of The Australian Corporate Lawyer—the journal of the Australian Corporate Lawyers Association—contains my article Banishing Shall from Business Contracts: Throwing the Baby Out with the Bathwater (PDF copy here). What it has to say won’t come as a surprise to regular readers of this blog, but I expect that it will come as a surprise to plenty of

Ken Adams

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"Nor Shall"

8/28/2014

As one of their assignments, last week my students at Notre Dame Law School analyzed the verb structures in the “SOW terms & conditions agreement” that goes with Cisco’s advanced services statement of work (here). Obviously, I had to perform an analysis of my own. One thing that caught my eye was use of nor shall in the following: The receiving party shall at all times

Ken Adams

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"Shall Indemnify and Keep Indemnified"

5/26/2014

There’s no end to the weirdness that drafters dream up. Evidently, it’s not enough that we have a choice between hereby indemnifies and shall indemnify (see this 2006 blog post). Recently I saw an additional variant, shall indemnify and keep indemnified. It appears in hundreds of contracts on the SEC’s EDGAR system. It’s analogous to shall inflate the balloon and keep

Ken Adams

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On Rehabilitating "Shall"

5/13/2014

Last week I was involved in the following exchange on Twitter with @ClearLanguage and @mrsalzwedel regarding—of course—shall: @KonciseD @500wordlawyer @ClearLanguage: I read many contracts where the lawyer uses shall in 3-6 senses. Perhaps efficiency = just drop it? — Matthew Salzwedel (@mrsalzwedel) May 8, 2014 I replied to Matthew that I’d answer his question on my blog, so here we

Ken Adams

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"Shall Not Allow"

2/6/2014

It’s routine for one post to beget another. My post on shall not negligently (here) was prompted by the following contract language: Company will not, and will not knowingly or negligently allow any third party to [do various things]. In a comment, David Ziff considered the implications of using just shall not allow, with negligently omitted. I agree with David. On

Ken Adams

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A Fictional Law-Firm Partner Gets Huffy About "Shall"

9/5/2013

Episode 5 of the third season of the U.S. TV show “Suits,” set in a corporate New-York-but-actually-Toronto law firm, features the following exchange between the character Louis Litt, a goofy transactional partner (played by Rick Hoffman), and an associate by the name Simon, after Louis thrusts in Simon’s face an unspecified written assignment that Simon had submitted to Louis: Louis:

Ken Adams

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Evidence for Continued Overuse of "Shall" in the Twenty-Third Century

7/8/2013

While trawling the far reaches of the Netflix galaxy, I encountered that fixture of the Western canon, Star Trek II: The Wrath of Khan. I leave it to others to explore the glories of this oeuvre. What caught my attention is what happens at 54:00. Spock’s protege Saavik (below) reminds Admiral Kirk of General Order 15: No flag officer shall

Ken Adams

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More on "Shall" by Bryan Garner

8/1/2012

Bryan Garner has an article on shall in the current issue of the ABA Journal (go here for the online version). It doesn’t say anything new, and I don’t need to add anything to what I said in this post from September 2011.

Ken Adams

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"Shall Require"

2/27/2012

Consider the following: Company shall require each of its subcontractors to provide insurance coverage … . Do you think a reasonable reader, or a judge, would conclude that shall require means the same thing as shall cause? [Updated February 29, 2012: Since one example does not a sample make, here are some other instances of shall require that I found

Ken Adams

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“Shall Refrain”

2/22/2012

I recently received from a reader the following email bringing to my attention shall refrain: Have you ever seen or written about a negative covenant written as “shall refrain from” instead of “shall not”? I see it today in an NDA from another party. It gives me some heartburn that the other party is obligated just to “refrain from” disclosing

Ken Adams

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Revisiting Use of "Shall" in Contract Drafting

9/23/2011

Use of shall in contracts will remain a topic of discussion. Today’s entry is this post on IP Draughts by Mark Anderson. It summarizes the current state of play. And it mentions that I’m in favor of using shall for contract obligations, and only contract obligations. I actually recommend an even narrower use than that—use shall only to impose an

Ken Adams

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Exploring "Shall Cause"

12/2/2010

I’m currently working on Koncision’s first product, a line of confidentiality agreements. I’m being assisted by Koncision’s confidentiality agreement editorial board (go here [link no longer available] for their bios), but I expect to air issues on this blog routinely. And here’s one to get the ball rolling: If Acme discloses confidential information to Widgetco and subsequently a rogue Widgetco employee

Ken Adams

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"Shall Never"

11/27/2009

Today I encountered shall never in a contract. I think it’s a form of rhetorical emphasis—you’re saying the same thing as shall not, but you’re also banging your shoe on the table. So I never say shall never.

Ken Adams

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"Shall" Versus "Will" in Business Contracts—An Exchange of Emails

11/18/2008

[Updated March 2, 2015: For my most recent take on this subject, see this article.] I’ve previously written in this blog about why I recommend that one use shall in a disciplined manner rather than throw it under a bus. Discussion of this topic features prominently in chapter 2 of MSCD, as well as in my October 2007 NYLJ article.

Ken Adams

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A Law Firm that Forbids Use of “Shall”?—Addendum

6/23/2008

In this post I described how I had heard someone cite by name some companies and one law firm—a multi-office U.S. law firm—that had foresworn use of shall. Well, recently I had the privilege of giving a series of seminars at that law firm, and I was tickled to be able to ask two senior corporate partners whether their firm

Ken Adams

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A Law Firm that Forbids Use of "Shall"?

11/30/2007

In my recent article advocating disciplined use of shall I mention that I haven’t seen any evidence of a flight from shall. At any given time individual lawyers, or groups of lawyers, or conceivably entire organizations, might eschew shall. But I have a hard time imagining that it could be commonplace for any group of lawyers—a notoriously free-spirited bunch—to proscribe

Ken Adams

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“Shall”—This Time It’s Personal

10/9/2006

Recently someone from the plain-English camp chided me for disagreeing with “the more progressive view” that one should avoid shall in contract drafting. Such potshots are, I suppose, inevitable if you publish enough, and they’re best ignored. But what good is a blog if one can’t occasionally use it to set matters straight? So here goes: My critic says, in

Ken Adams

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