(“The production facility is considered part of the assets of the joint venture when it is constructed.”) The Plain English Manual, published by Australia`s Office of the Parliamentary Counsel, notes that while the traditional style uses the word “shall” for the imperative, the word is ambiguous as it can also be used to make a statement about the future. The manual recommends: Why don`t lawyers write in the present tense? One explanation is that the lawyer believes that she is writing for the future and therefore should write about things as if they would happen in the future! But this is a false premise. The usual rule of interpretation is that a document speaks constantly. And if a document is read in the future (for example, if its conditions are implemented), the future will be present at that time! It is therefore more logical to pull in the present tense and get rid of unnecessary flows that confuse the meaning. Soll is one of the most corrupt and contentious words in the language of the law. More than 100 pages of the Words & Phrases encyclopedia are devoted to a summary of more than 1,300 common law jurisdictions. This abuse also extends to laws and private legal documents. For a good discussion of “shall” and “must,” see Bryan Garner, A Dictionary of Modern Legal Usage (2nd ed. 1995), pp.
939-942. Australia`s Corporate Tax Act 2009 does not contain a “target” in its substantive provisions. Despite the ambiguity of the word, the word is destined to continue to be used in the majority of agreements, contracts and legal forms. Instead, these documents should be drafted or revised in such a way that they must, can, will be or should. Unfortunately, the complete elimination of existing documents and templates without expert legal advice requires a review of countless documents and accurate analysis each time the word appears in a document to find the correct meaning and replace it with the appropriate word. Alternatively, a global proofreading language can be inserted into existing documents to require that all uses of the word be interpreted as mandatory and not permissive. 6 R. Evid.
1 Note by the Advisory Committee; Fed. R. Civ. P. 1 Advisory Committee Note (“The revised rules minimize the use of inherently ambiguous words. For example, depending on the context, the word “shall” may mean “shall”, “may” or something else. The risk of confusion is exacerbated by the fact that “shall” is no longer commonly used in spoken or clearly written English. The revised rules replace “shall” with “shall”, “may” or “should”, depending on the context and the interpretation set out in each rule is correct. »). It is not uncommon for the word “will” to also be used in contracts to impose obligations or obligations. Traditionally, this is not true. The term “will” has been defined as the expression of a will, a strong desire, a determination or a decision to do something.
As mentioned earlier, contracts are written in the third person and the use of the word “will” in the third person denotes a sense of the future, or rather refers to a future action or event. It has been widely said that the use of the word “will” in contracts should imply only a future act or event and should not be used to create obligations, although this is not a strict rule. Thus, for the sake of simplicity and clarity, many contract writers use the word “will” to express a future event and, in contrast, the word “shall” to impose an obligation. To state or explain a fact (“Company means ABC Limited.”) Another peculiarity of legal writing is that lawyers tend to write in the future tense and use generously for this purpose. Here are two typical examples of “future form” from an agreement: 3. “No one may enter the building without first signing the list.” If a negative word such as not or not before shall (as in the example in square brackets), the word must often mean may. What is denied is permission, not a requirement. Commercial parties often use the word “shall” to impose a contractual obligation. This decision of the Court of Appeal illustrates how the surrounding circumstances, including previous transactions, may mean that “shall” is only an expression of the intention of the parties at the time of entering into the contract: PM Law Ltd v Motorplus Ltd [2018] EWCA CIV 1730, 26 July 2018 In other words, a good draftsman always expresses the same idea in the same way and always expresses different ideas differently.