Use of word "shall"

Log Out | Topics | Search Moderators | Register | Edit Profile

Author Message Joe Edwards (Unregistered Guest) Unregistered guest Posted on Wednesday, July 11, 2018 - 11:15 am:    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:    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:    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:    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:    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:    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:    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:    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:    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:    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:    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:    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