Richard Delaney on "SHALL"

 

Legal translators and those who aspire to be are often confronted with arguments over the use of the word shall in legal documents such as contracts. Here, my esteemed colleague in translation, attorney Richard Delaney, offers his sensible and rather comprehensive perspective on the use of shall and purported alternatives.

The text of his guest post was originally part of a social media discussion in which participants felt it would be a shame for such an excellent explanation to disappear into the scrolling void as so many things often do.

Richard Delaney:

Below please find a brief summary of the main reasons I like shall, and do not believe that the alternatives come close:

1) (Lack of) Ambiguity:

If I say "shall we have a cup of tea" or "we shall see" that implies no obligation, it is merely a question or a statement. If I use "shall" in a contract, it implies a clear, contractual, future obligation. Ideally I would steer away from such ambiguity; however, the fact that "shall" is now almost extinct in normal usage means that it is now considerably less ambiguous than it might once have been. Particularly in contracts, or legal writing generally, there is virtually no other meaning that can be attributed to "shall" other than a contractually agreed future obligation of a party;

2) Lack of suitable alternatives:

All of the alternatives that are frequently suggested have drawbacks:

"should" - this means something else (and the German "soll" is a frequent mistranslation into German, where "shall" is often misunderstood to mean "should"). "Should" suggests a preferred approach, but does not impose any firm obligation. While there have been court decisions in Germany that "soll" is an indication of the standard situations, which should only be deviated from in exceptional circumstances, but crucially "should" DOES allow a certain amount of flexibility. It is basically saying "It would be nice if you could do that, and we would really appreciate it if you could try, but don't worry too much if you can't".

"will" - "will" is one of the suggested alternatives touted by Garner. It has the advantage of corresponding more or less with the German usage and of being a more commonly used word, but semantically the meaning is different. "Will" is a statement of fact, not one of obligation. Drafting a contract, however, is rarely done by anyone clairvoyant, who can actually predict what "will" happen. Of course "will" can be used in contracts, to set out what certain consequences are ("In the event that raw materials are not delivered in time, the Purchaser will have to suspend operations until such time as new raw materials have been delivered..."), but it is unsuitable to express a contractual obligation. Even if one argued that "will" is regularly used to describe future intentions, and claiming that only a clairvoyant could properly use it is overly semantically pedantic, it still fails to impose the obligation aspect of "shall". Stating that "Party A will deliver 25 tons of bananas without abnormal curvature per calendar year" is merely a statement. It might be useful if I describe the setting to a third party I want to enter into business with (for example a publisher for banana dessert recipes), for whom that information is of interest. However, in a contract with Party A, that statement, although expressing some future intent, fails to impose any firm obligation to do so. Arguably any such obligation might be implied if the contract includes certain sanctions for any failure of Party A to deliver, but then it is necessary to construe "will" by using context, rather than having the semantic clarity of "shall".

"must" - this is actually my favourite alternative, if one had to opt for one, as it clearly imposes the obligation, it also makes it clear that this is something that HAS to be done, rather than something that WILL be done. However, "must" also has a slightly different meaning, as it describes a necessary element, rather than merely an obligatory one. "Must" is a practical precondition, while "shall" is merely an obligation. So, I might say "The translation must be delivered before 9 a.m., as any later submissions will be discarded", or "a supervisor must be present before any heavy machinery may be operated" - in either example, a failure to comply will make the intended action (legally) impossible. Obligations that are phrased in the "shall" form, on the other hand, are contractual obligations, but a breach of those obligations does not result in a complete impossibility of the intended action. It is a little bit like conditions and warranties in a contract- one entitles you to terminate, the other merely entitles you to damages.

I am a firm believer that "will" and "must" (and to a lesser extent "should") do have their place in contracts, but their meaning is slightly different to that of "shall". If one tries to substitute any of the alternatives, that increases ambiguity (while the stated aim of using these alternatives is to simplify the language used), and impoverishes the language. To my mind that is counterproductive.

3) Retention of style

Of course things change, language usage changes, and legal style changes. I don't have any objection to that- on the contrary, I think that a lot of the moves towards more comprehensible legal language are commendable. However, English contracts have traditionally been written slightly differently to, say, German contracts. In English legal language we don't have the convention of using the present indicative to express a party's obligations (so while a German text might say "Party A delivers 25 tonnes of bananas a year", this statement, which would be a clear expression of a contractual obligation in German, would likely only be read as a statement of fact in English. An obligation would be expressed as "Party A shall deliver... "). While stylistic conventions can obviously be changed, I see it as again being counterproductive, as it is more likely to lead to more confusion, rather than reducing it.

That is why, all things considered, I still favour using "shall".

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The author of this guest post is a respected expert on German and British English legal language, offering a range of consulting, translation and education services. Information on the current seminar program of his partnership can be found here.

The official memoQ blog

 

There's been a lot more activity lately on the official blog for memoQ, maintained by the software artists formerly known as Kilgray. Some really good stuff too. The blog has existed for years, but I never added it to the blog roll here (see the left sidebar, down a bit), because various technical issues prevented updates from being seen as new content was added. And it also wasn't really that active, as the principal team members were focused on day to day matters of support and development.

But as the rest of the CAT tools market has increasingly come to resemble episodes of Star Trek: TNG, with RWS now playing the role of the Borgs as they  swallow one company after another, purge management of competence and independent thinking, then move on to the next anti-competitive, destructive acquisition, the last remaining independent CAT tool vendor with no compromising ties to intragroup LSPs competing with its technology customers, has really started getting its act together again.

Since the reorganization of memoQ Ltd. and the appointment of co-CEOs – co-founder Balázs Kis and Peter Reynolds – the company has been focused once again on its growing "technical debt", much to the relief of key staff with whom I've discussed development privately. 

Communication has become clearer and more consistent, and it looks like the good path of managing the flagship product memoQ, which really became apparent with the version 8.4 release under the competent coordination of Senior Product Owner Zsolt Varga and which has continued its winning streak making the software more flexible and responsive for evolving project needs. And the new Customer Marketing Manager Cedomir Pusica is strongly focused on making learning assets better and more accessible, expressing a strong interest in building a stronger user base through real, best practice education resources. I am very, very encouraged by most of what I see this year.

So check out their blog. There have been times lately when I read something there and thought "Damn, wish I had written that. Good job!" That wasn't such a frequent thought in years past, when it was sometimes clear that the post writer didn't really understand the features being discussed. What I read now meets my personal standards for useful content. (I admit to having some catch-up to do with the reading, but every time I look now, I end up smiling.)

I'll still be writing my own stuff on memoQ in my own way and doing education and consulting for friends and colleagues in the sector at all levels as before. But in recent years, after the retirement of my companheira, my energies are less invested in public matters, and only a small part of my writing, tutorial video work, custom development and whatnot is released publicly. There is a backlog of some hundreds of draft blog articles and many hours of raw and edited research video, recorded webinars and online tutorials that only occasionally see light with a few individuals who need them.

Really, its time to absorb what's useful out there, make it your own in your own professional environment and your own languages. Large parts of the translation sector remind me a bit of the Republican Party in the US, campaigning on their own Big Lies with regard to "AI", NMT and other recent fads, with an utter disregard of ethical issues and serious, disturbing occupational health concerns for those working with machine-generated texts (cf. Bevan et alia and published research at the University of Groningen, Netherlands, for example). It's really about the concentration of power and the disenfranchisement of individual professionals when you think about it. RWS: "You will be absorbed!" Renato B.: "Quality doesn't matter!" TWB: "Screw the local service markets, we need your free work to feed the machine translation engines of our corporate sponsors!" ProZ.com: "BOHICA, baby!" And so on. Same as it ever was.

In the midst of all that noise, the memoQ team still offers a signal that can guide real professionals to better ways of working and less frustration. Sometimes it's hard to pick that signal up, but it is indeed there. And with improvements to their blog and a renewed commitment to serviceable education, that signal is getting stronger.