| Author |
Message |
Alex Sperfeld
Intermediate Member
Username: alexsperfeldhdrinccom
Post Number: 4
Registered: 11-2022
| | Posted on Tuesday, April 11, 2023 - 09:29 am: |    |
Taking a poll:
How do we feel about the use of "shall" and "will" (e.g. Contractor shall or Owner will) in Specifications in general?
We seem to have conflicting opinions in the office. I do not like to use either of those terms in my Specifications.
Thoughts? |
Brian Payne
Senior Member
Username: brian_payne
Post Number: 304
Registered: 01-2014
| | Posted on Tuesday, April 11, 2023 - 09:33 am: | |
Don't like legalize words like "shall", but "Owner will" is typical in my spec based off of RIB Speclink language. |
Alex Sperfeld
Advanced Member
Username: alexsperfeldhdrinccom
Post Number: 5
Registered: 11-2022
| | Posted on Tuesday, April 11, 2023 - 09:36 am: | |
Interesting - if I want to denote something as provided by the Owner, I would prefer to say "Owner to provide..."
We don't know if the Owner will, but we know they are supposed to... ;-) |
Edward J Dueppen, RA, CSI, CCS, LEED AP
Senior Member
Username: edueppen
Post Number: 89
Registered: 08-2013
| | Posted on Tuesday, April 11, 2023 - 09:45 am: | |
Per CSI's Construction Specifications Practice Guide, "shall" is "Indicative Mood" and should be avoided in preference to Imperative Mood (e.g. Indicative "Adhesive shall be spread with notched trowel." vs. Imperative "Spread adhesive with notched trowel.").
I use Imperative mood whenever possible, but there are some instances where Indicative just reads better to me. |
Dave Metzger
Senior Member
Username: davemetzger
Post Number: 814
Registered: 07-2001
| | Posted on Tuesday, April 11, 2023 - 11:54 am: | |
Agree with Edward. Imperative mood is always preferable.
When Indicative reads more smoothly, I use "shall" to refer to contractor obligations, and "will" to refer to owner and A/E obligations.
Occasionally some attorney organizations try to promote the use of "will" over "shall", contending "will" has more legal force. I am not an attorney, but would just point to decades of use of "shall" as precedent. If it ain't broke, don't try to fix it. |
William C. Pegues
Senior Member
Username: wpegues
Post Number: 998
Registered: 10-2002
| | Posted on Tuesday, April 11, 2023 - 12:40 pm: | |
Edwards and Dave I agree with.
Imperative language is the best when speaking to the contractor. It avoids the different interpretations of shall and will.
The issue being that some say will is more common, and shall has less legal implication.
However, many definitions of shall and will come out like this:
Most requirement specifications use the word shall to denote something that is required, while reserving the will for simple statement about the future, about intent but not about requirement.
That is what I was raised on in specifications over my 40+ year career in specifications.
I never once had a problem with it. But then, I always used imperative language when addressing the contractor avoid the use of shall.
Now that lawyers are getting behind Will as having more legal force than Shall, this could potentially muddy the water if something were go legal review.
William C. Pegues, FCSI, CCS, SCIP |
David G. Axt, CDT, CCS, CSI, SCIP
Senior Member
Username: david_axt
Post Number: 2010
Registered: 03-2002
| | Posted on Tuesday, April 11, 2023 - 01:13 pm: | |
I avoid using "shall" and "will". Many times you can replace "shall" with a colon ":".
"Interior Doors: Painted by Contractor."
"Paint: Supplied by Owner."
I once had an owner ask the architect (my client) to replace "Owner will" with "Owner may". That way the owner was not locked into doing something.
David G. Axt, CDT, CCS, CSI, SCIP
Specifications Consultant
Axt Consulting LLC |
David G. Axt, CDT, CCS, CSI, SCIP
Senior Member
Username: david_axt
Post Number: 2011
Registered: 03-2002
| | Posted on Tuesday, April 11, 2023 - 01:18 pm: | |
Below is a response from my brother-in-law, a licensed practicing attorney, on the difference between shall and will.
In the legal world, “shall” is a command, meaning that something must be done. “Will” is simply a prediction. So “the painter will supply the paint” simply predicts where the paint will come from, but arguably is not a legal obligation.
David G. Axt, CDT, CCS, CSI, SCIP
Specifications Consultant
Axt Consulting LLC |
Alex Haskell (she/her)
New member
Username: alexhaskell
Post Number: 1
Registered: 04-2023
| | Posted on Wednesday, April 19, 2023 - 07:58 pm: | |
I define the use of imperative statements to mean Contractor shall, also define shall, and the use of colon to mean shall. I do this in 000510 - Project Manual User Guide which makes my basic stuff less likely to get deleted when someone else is supposedly writing a good Division 01. Depending on how documents are enumerated in the Owner-Contractor agreement, that location may or may not be contractual though. I've also seen it placed in 011100 or 014xxx.
This way, shall can be entirely avoided except the one place where it is defined. Will is considered slightly optional and is only used for things the Owner will (hopefully) do. There was something about this in the CSI MOP/PRM (now Practice Guides), I haven't tracked down where it is now, but if you are looking for a definitive answer about shall/will, you may find it there.
Be aware "Owner to provide" may mean furnish and install. "Provide" is usually defined somewhere in 014xxx. This is only a problem when the intention was just for Owner to furnish. |
John Bunzick
Senior Member
Username: bunzick
Post Number: 1910
Registered: 03-2002
| | Posted on Saturday, April 22, 2023 - 02:00 pm: | |
A number of years ago I had a public client that had read somewhere that "shall" had no legal meaning and implied the action required was optional. Although I had evidence the client was wrong about the legal theory, they insisted that all instances of the word be removed from the specs. This turned out to be much easier than I expected (though it was a lot of unpaid work). Most specs are already written that way now, so it's not really a big deal. There were supplemental conditions that were a bit more difficult to work out, but it was doable. I never used "shall" after that, and I never missed it. |
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