Shall I or shan’t I? Shall, must and the plain language brigade

Here’s a clause from a German model employment contract I took from the IHK Frankfurt am Main:

§ 8 Verschwiegenheitspflicht

Der Arbeitnehmer verpflichtet sich, während der Dauer des Arbeitsverhältnisses und auch nach dem Ausscheiden, über alle Betriebs- und Geschäftsgeheimnisse Stillschweigen zu bewahren.

A possible translation:

§ 8 Duty of confidentiality

The employee shall during the employment relationship and also after it ends preserve confidentiality with regard to all trade and business secrets.

I hate discussing the ins and outs of contracts. Many other legal translators will disagree with this. Points of contention are: §, shall, employment relationship, trade and business secrets, and generally how ‘native English’ the whole thing sounds (not very, in this case).

But this is just about shall.

How can you translate sich verpflichten?

undertake to – British contracts sometimes, but sometimes unfamiliar to Americans, in my experience
shall – traditional, widely used in translations, sometimes avoided in native-language English contract
will – OK, a promise under contract
must – sometimes recommended over shall as less ambiguous
is to – sometimes recommended as less ambiguous

What I usually do is use shall. I only use it where it indicates something is mandatory. In an ideal world, the subject of the sentence should be clear, as here (the employee shall). It is not such good drafting to use the passive (confidentiality shall be preserved) but we are translators, not drafters, and if the German doesn’t make it clear whose duty is referred to, there’s nothing we can do about it.

There are proponents of plain English who insist on avoiding shall and using must to impose an obligation. They normally address people drafting from scratch in English, rather than translators. Plain English can become a bit of a crusade and it’s often said by lawyers that not everything in the law is susceptible to simplification (they would say that, wouldn’t they, but I tend to agree).

I prefer the middle road which says shall should only be used in a mandatory sense. To quote Doonan and Foster, Drafting, chapter 7:

‘Shall’ should be used only in the imperative sense in a legal document to impose a duty or obligation on the legal subject to whom it refers.

The most detailed criticism of shall I have read is by Bryan Garner in A Dictionary of Modern Legal Usage (I think the second edition has a different title). As I recall, he nailed 16 different uses of shall. In his edition of Black’s Law Dictionary, the 9th edition of which I happen to have on my iPad (and iPod), he gives five senses. The first is:

Has a duty to; more broadly, is required to – This is the mandatory sense that drafters typically intend and that courts typically uphold.

If you read anything about the court cases where the use of shall has led to problems, you will soon understand the advantages of must. But those cases apply to people writing English. All the contracts I translate are governed by German law and have a clause saying that the German version takes precedence over the English; my translation is for information only. If I were asked to help cobble together a contract to be governed by English law and where the English language took precedence, I would refuse as I would regard this as unlicensed practice of law. So no court is likely to stumble over shall in my translations.

So, why not will, must or is to? I have used must and I like it. Will is fine too, but if mixed with shall it confuses readers who are not native speakers of English or not English-speaking lawyers. I find is to a bit clumsy. I have heard some odd objections to must, for instance some seem to regard it as weaker than shall. It probably comes down to traditional use, and shall is certainly not avoided by most of the translations into English by German native speakers I’ve seen. People are familiar with it, expect to see it, and probably understand it as mandatory.

There is a lot more that could be said on this topic, but that’s enough for now.

8 thoughts on “Shall I or shan’t I? Shall, must and the plain language brigade

  1. Great post! Thanks for sharing. You write:

    “All the contracts I translate are governed by German law and have a clause saying that the German version takes precedence over the English; my translation is for information only.”

    I understand such weasel words are standard practice in legal translation, and this, together with a statement about the tribunal of first resort in the event of a dispute, will plainly tend to situate a contract in one language or another in the event of a dispute.

    But do such clauses really stick? If the spirit of contract law is an agreement freely entered into between parties, and one of those parties is not competent in the contract’s primary language (L1), then the translation surely has an important legal place should a court wish to interpret what the party who speaks only L2 thought they were agreeing to?

    • (I accidentally deleted the above comment with a bunch of spam, but I hope I managed to restore it, except that the IP address will be mine…)

      Well, you say ‘weasel words’, but that’s not how I see it. It’s common in international contracts to have such a clause, and if the contract then needs to be interpreted in court, the original language version will be the basis. Of course, most contracts don’t go to court, and neither can you stop a person suing on the basis of the translation. I doubt this happens often. It is very difficult to get evidence of cases on bad translations (these are collected by insurance companies selling translators insurance). But the reader of the translation is put on guard by the clause and should get legal advice if he or she has problems before signing.

      Here’s a sample clause from Anderson, A-Z Guide to Boilerplate and Commercial Clauses – may be of interest since one could use it to polish up my translation:

      ‘This agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.’

      I am sure more could be said on this point too!

  2. Margaret: I too use “shall” to impose a duty on the subject of a sentence. And in the following blog post, I point out the weaknesses in Garner’s argument: http://www.adamsdrafting.com/revisiting-use-of-shall-in-contract-drafting/.

    You’re right about Plain English being “a bit of a crusade.” I’ve long criticized traditional contract legalese, yet because I’ve elected to recommend disciplined use of “shall,” in some circles I’m a dinosaur.

    Incidentally, in the new third edition of my book “A Manual of Style for Contract Drafting,” I discuss verb structures in excruciating detail. I mention this not out of a lust for royalties, but just because I think your readership might find it helpful. For more information, go to http://www.adamsdrafting.com/writing/mscd/. An ebook version should be coming out in a couple of months.

    Ken

    • Thanks for links, Ken. I usually have problems with discussions of ‘shall’ because legal writers don’t know anything about non-legal uses and ‘normal’ English grammar. May wait for the ebook.

  3. Plain language is not about simplifying. It is about clarifying, by choosing words that allow the intended meaning to emerge as transparently as possible. What could be clearer than “must” to denote an obligation?

    It can become a crusade, but only in the wrong hands. Proper plain-language practice is based on evidence, not ideology or habit. In any case, a blinkered insistence on using more traditional linguistic forms is not helpful, either.

    The plain-language movement is no threat to conscientious drafters. Describing it using terms like ‘brigade’, with the pejorative connotations they bear, is not useful.

  4. shall seems to me also the handiest way to translate the mandatory provisions of a contract.

    is obliged to might sometimes be appropriate for ist verpflichtet and of course you can then worry about the possible differences between ist verpflichtet and verpflichtet sich, though I think they must be rather small, because by signing a contract, the party verpflichtet sich to every obligation the contract says that he/she/it has under its provisions.

    In general: many thanks for your blog. It is very helpful.

  5. I understand such weasel words are standard practice in legal translation, and this, together with a statement about the tribunal of first resort in the event of a dispute, will plainly tend to situate a contract in one language or another in the event of a dispute.

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