Legal writers must take particular care with instructional language and use of the words shall, must and may, as well as the description of dates and times.
Shall
Prescriptive legal documents – laws, rules, regulations, contracts, wills and formal letters – need to cover both the present and the future.
Shall has often been used to achieve this. However, shall can mean either ‘this will happen in the future’ or ‘this should happen’:
The chairperson shall be elected by the company directors. [Does this mean the chairperson will be elected in the future, or that the chairperson must be elected by the company directors?]
Choose another word to ensure that your meaning is clear. Use does to indicate the present and future, will to indicate the future, and must to indicate that something should happen:
The meeting shall not commence without a quorum of members being present. [Unclear: will not? may not?]
The meeting does not commence without a quorum of members being present. [Clear: now and in the future]
The meeting will not commence without a quorum of members being present. [Clear: future]
The meeting must not commence without a quorum of members being present. [Clear: obligation]
Although some find the use of must too emphatic, that is a stylistic rather than legal objection. It is the best word to use to make clear what needs to be done.
Must and may
Contracts and other legal documents need to distinguish between:
- legal obligations (this means something that has to occur – in this case, you should say must)
- options enshrined in laws (this means something that is allowed to happen, but does not have to – in this case, you should use may)
If no quorum of members is present, the meeting may be held as an extraordinary executive meeting. [The members are allowed to hold the meeting but do not have to]
If no quorum of members is present, the meeting must be adjourned to another date. [The members have to adjourn to another date]
Can
This verb is often used in explanatory legal documents, but is sometimes ambiguous.
A Justice of the Peace can authorise your document. [Does this mean that the JP is the only person who is able to do this? Or that they are one kind of legal officer with this power – but there are others unspecified?]
The ambiguity of can is reduced when combined with other modifiers (eg can lawfully perform on Saturdays) or with negatives (eg cannot perform on Sundays).
Time references
Any references to time in legal texts must be clear. Traditional legal words such as hereafter and heretofore, as well as common words such as now, do not do this adequately because the starting point is not clear: does it mean when the document was drafted, signed or read?
Be specific about any references to time by indicating a start or end date (and whether it is inclusive or not), spelling out the name of the month (to prevent possible confusion about the day/month or month/day notation), and specifying the time zone for a reference to a particular time:
Commencing on 13 April 2020
No later than 5 pm, Australian Eastern Standard Time
