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Joe Edwards (Unregistered Guest)
Unregistered guest
Posted on Wednesday, July 11, 2018 - 11:15 am:   Edit PostDelete PostPrint Post

A co-worker has raised a question based on an FAA Plain Language Tool Kit brochure which says that the word "shall" imposes no legal obligation on the reader and the words to be used are "must" - for something mandatory; "must not" when prohibited; "may" when optional; and "should" when recommended. Does anyone have experiences and/or comments on this?
Nathan Woods, CSI, CCCA, LEED AP
Senior Member
Username: nwoods

Post Number: 745
Registered: 08-2005


Posted on Wednesday, July 11, 2018 - 12:08 pm:   Edit PostDelete PostPrint Post

There is no contractual difference between shall and must. They are both imperative.
Ronald L. Geren, FCSI Lifetime Member, AIA, CCS, CCCA, CSC, SCIP
Senior Member
Username: specman

Post Number: 1507
Registered: 03-2003


Posted on Wednesday, July 11, 2018 - 12:36 pm:   Edit PostDelete PostPrint Post

Here's an article I wrote many years ago (2005, I think) on the subject: http://specsandcodes.com/articles/Other/Must%20We%20Use%20Shall%20In%20Our%20Specifications.pdf
Ron Geren, FCSI Lifetime Member, AIA, CCS, CCCA, CSC, SCIP
Dave Metzger
Senior Member
Username: davemetzger

Post Number: 730
Registered: 07-2001
Posted on Wednesday, July 11, 2018 - 12:37 pm:   Edit PostDelete PostPrint Post

There have been decades of precedent in the construction industry that "shall" does obligate the contractor to comply with the stated requirement.

But it's better to avoid the issue by using imperative as much as possible, eg "Paint doors", rather than "Contractor shall paint doors". That's even plainer language.
Brian E. Trimble, CDT
Senior Member
Username: brian_e_trimble_cdt

Post Number: 105
Registered: 08-2005


Posted on Wednesday, July 11, 2018 - 04:44 pm:   Edit PostDelete PostPrint Post

When I sat on the Committee on Standards at ASTM, someone tried to bring up the idea that all uses of "shall" should be changed to "must" in ASTM standards based on some little known court case or industry standard. Everyone on the committee at that time didn't believe that a change was needed and that "shall" was a perfectly fine term to use. So one of the largest standards setting organizations is keeping the use of the word 'shall' which is precedent setting to me. :-)

And I like Dave Metzger's suggestion for the use of the imperative...
John Bunzick, CCS, CCCA, LEED AP
Senior Member
Username: bunzick

Post Number: 1749
Registered: 03-2002
Posted on Friday, July 13, 2018 - 03:35 pm:   Edit PostDelete PostPrint Post

I did have this exact experience in 2004, also on an FAA-funded project. The client, the city of El Segundo CA, insisted that shall must be removed, and replaced with must (see what I did there?) where revising the text didn't otherwise do the job. It took a lot of time, but in the end many paragraphs were better worded without the shall. Only a few clauses turned out to be awkward without shall.

What I recall is that there was some legal paper written at some point prior with the theory that shall was ambiguous. I seem to recall that the theory wasn't based on a lot of case law - maybe one case - but can't remember for sure.
Michael Chusid, RA FCSI CCS
Senior Member
Username: michael_chusid

Post Number: 407
Registered: 10-2003


Posted on Friday, July 13, 2018 - 04:37 pm:   Edit PostDelete PostPrint Post

It seems like the argument about "shall" and "must" is, itself, a lot of must - "the frenzied state of certain male animals... associated with the rutting season."

This is an old argument that reeks of must -- "dankness and mold".

Those perpetuating it may have imbibed the product of must -- "fermenting grape juice".

Must it continue - "ironic questions expressing irritation?"

I suppose we must, "expressing an opinion about something that is logically very likely."

So there you have it, "must" is based on opinion, logic, and likelihood.
Michael Chusid, RA FCSI CCS 1-818-219-4937
www.chusid.com www.buildingproduct.guru
Michael Chusid, RA FCSI CCS
Senior Member
Username: michael_chusid

Post Number: 408
Registered: 10-2003


Posted on Friday, July 13, 2018 - 04:38 pm:   Edit PostDelete PostPrint Post

As an alternative to changing every occurrence of shall to must, would your clients accept a definition in Division 01 that "shall" means "must"?
Michael Chusid, RA FCSI CCS 1-818-219-4937
www.chusid.com www.buildingproduct.guru
John Bunzick, CCS, CCCA, LEED AP
Senior Member
Username: bunzick

Post Number: 1750
Registered: 03-2002
Posted on Friday, July 13, 2018 - 05:02 pm:   Edit PostDelete PostPrint Post

Michael, In my case, no.
Ron Beard CCS
Senior Member
Username: rm_beard_ccs

Post Number: 446
Registered: 10-2002


Posted on Monday, July 16, 2018 - 02:02 am:   Edit PostDelete PostPrint Post

To new comers to this board and to old comers on this board who don't remember last month:

Check out this from late 2004:
http://discus.4specs.com/discus/messages/3062/1279.html
"Fast is good, but accurate is better."
.............Wyatt Earp
Sheldon Wolfe
Senior Member
Username: sheldon_wolfe

Post Number: 1015
Registered: 01-2003


Posted on Tuesday, July 17, 2018 - 01:47 pm:   Edit PostDelete PostPrint Post

From Ken Adams, my favorite attorney:

http://www.adamsdrafting.com/revisiting-use-of-shall-in-contract-drafting/

http://www.adamsdrafting.com/shall-means-shall/

http://www.adamsdrafting.com/another-skirmish-in-the-shall-wars/
Note that this one applies specifically the the FAA requirements.
Ron Beard CCS
Senior Member
Username: rm_beard_ccs

Post Number: 447
Registered: 10-2002


Posted on Wednesday, July 18, 2018 - 01:00 pm:   Edit PostDelete PostPrint Post

Below is a response to my query to the Gypsum Association from Michael Schmeida, Director - Technical Services”:

“There is no manufacturer named Gibson we are aware of, nor do we have any record of one in our archives.

My belief is there are one of two possible scenarios going on here:

1. Someone meant to type gypsum and misspelled it and autocorrect made it Gibson.

2. They may be referring to a distributor to provide the board.”
"Fast is good, but accurate is better."
.............Wyatt Earp

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