Using the word "shall" in specificati...

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Author Message John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 269 Registered: 03-2002 Posted on Wednesday, September 29, 2004 - 11:01 am:    I have a California public-agency client who advises that their attorney will not permit the use of the word "shall" in any manner in the contract or the specifications. We are supposed to use either alternative sentence constructions, or one of the words "will" or "must". (There are only a limited number of instances where we use "shall", primarily to avoid occasionally awkward sentence constructions.) However, I have always been told that "will" must be avoided and that "shall" has more legal strength. And, I've never used or heard of using "must". I don't know if there is some new case-law precedents involved here, or new thinking on the part of some attorney's or public agency organization. Has anyone either had a problem because of the use of the word "shall" or become aware of a change in legal approach with this word? William C. Pegues, FCSI, CCS Senior Member Username: wpegues Post Number: 310 Registered: 10-2002 Posted on Wednesday, September 29, 2004 - 11:16 am:    Strange attorney. Its owner 'will', contractor 'shall'. However, I avoid the actual use of the word as much as possible because it just becomes so repetitive. Use Imperative language. You don't need to say 'The Contractor shall...' do something. Just write it 'Do something...' Makes it easier to read. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 86 Registered: 01-2003 Posted on Wednesday, September 29, 2004 - 11:20 am:    If written as instructions to the contractor (which they are) specifications don't need the word shall. But, in the conditions of the contract, which are a statement of relationships and obligations, some form of imperative is needed to indicate what each party's responsibilities are. As far as using "must", it has always been my understanding that the common use of "will" and "shall" apply. I have not heard of anyone promoting the use of "must". Richard Howard, AIA CSI CCS Senior Member Username: rick_howard Post Number: 34 Registered: 07-2003 Posted on Wednesday, September 29, 2004 - 11:30 am:    Then there is an alternative meaning for must: a periodic state of the bull elephant characterized especially by aggressive behavior and usually connected with the rutting season. Perhaps thinking of that will put the request in proper context. David E Lorenzini Senior Member Username: deloren Post Number: 40 Registered: 04-2000 Posted on Wednesday, September 29, 2004 - 11:39 am:    "must" and its sister "to be" are so prevalent in many specification sections I receive from manufacturers and part time specifiers that I set up an Autotext command that converts those words to "shall" with the F3 key when I have to incorporate them into my sections. Anne Whitacre, CCS CSI Senior Member Username: awhitacre Post Number: 128 Registered: 07-2002 Posted on Wednesday, September 29, 2004 - 12:29 pm:    John- I have never found that it does any good to argue with attorneys employed by public agencies. Write a letter to your client explaining your position and then say that upon their direction you will do as the attorney suggests, even though it is counter to your own experience. ... And then make sure your billing gets paid. John McGrann Senior Member Username: jmcgrann Post Number: 31 Registered: 03-2002 Posted on Wednesday, September 29, 2004 - 12:49 pm:    Try substituting the words "agrees to". Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 87 Registered: 01-2003 Posted on Wednesday, September 29, 2004 - 01:14 pm:    "Agrees to" should appear only in an agreement. The conditions state what is to be done by whom, and the specifications tell the contractor what to do; all the agreeing takes place when the parties sign the agreement. But, as noted by Anne, sometimes you end up saying things you don't really want to say. J. Peter Jordan Senior Member Username: jpjordan Post Number: 15 Registered: 05-2004 Posted on Wednesday, September 29, 2004 - 01:30 pm:    This may be a case of an attorney trying to simplify contract language and make it more intelligible. I believe some states have enacted legislation requiring laws and contracts to be easier to understand. I have told our production staff and our consultants that I don't want to see the word "shall" used in Drawing annotations or in specification sections. Following CSI's recommendations on streamlining can be applied to Drawing notes as well as specification text and will usually result in a shorter, clearer statement of the requirement. I have taken a 25 page spec, shortened it to 15 to 18 pages, made it clearer, and actually added requirements. I agree that it never does any good to argue with any attorney, and most attorneys have extremely limited experience with construction contracts. They are usually unaware of the practical implications of their position and the potential for conflict with other contracts; e.g., Construction Contract requirements preventing the A/E from complying with Design Contract Requirements. As noted above, make your position known from your perspective as one having experience with construction contract (not as an attorney), and then follow your client's instructions as best you can. C. R. Mudgeon Senior Member Username: c_r_mudgeon Post Number: 28 Registered: 08-2002 Posted on Wednesday, September 29, 2004 - 02:00 pm:    Whoo-ha-ha-ha! Now that's a good one - "an attorney trying to simplify contract language and make it more intelligible"! Ain't it funny, any attorney is automatically assumed to know about construction contracts, while those of us who work with it every day are supposed to keep our hands out of the "legal" stuff. Shelby N. Gordonswyth Senior Member Username: shelbyng Post Number: 13 Registered: 08-2004 Posted on Wednesday, September 29, 2004 - 03:38 pm:    I too eschew the word “shall” where the imperative verb is more direct, but also find that in a few cases it is the still clearest way to indicate that the contractor is required to do something. The CSI Manual of Practice, which should be definitive for usage in the construction industry (notwithstanding whatever Black’s Law Dictionary may say), says the following (p. FF/170.2, 1992 edition): “Shall and Will: Shall is used as an imperative in reference to the work required to be done by a contractor. Will is optional and is used in connection with acts and actions required of the owner or the architect engineer (A/E). The words ‘must’ and ‘is to’ are not recommended.” John, I suggest that the point should be made as diplomatically as possible that the requested change is exactly the opposite of accepted industry usage and official industry definitions and recommendations, and is likely to lead to confusion and unintended interpretation. If forced to comply despite this, document the point in a written CYA communication to the agency and keep a copy in a secure location. Recently I read that in the U.S., “shall” (but not “will”) conveys an imperative sense (a command), whereas in Britain, it is just the opposite: in the U. K., “will” is the imperative, not “shall.” Perhaps the attorney has been unduly influenced by legitimate-but-British authorities, not realizing this fundamental transatlantic difference. “Shall and will” yields about 8,650 hits on Google, some of which are mind-boggling discussions that touch on this very issue, among others. The two words have quite a history. As will be seen below, the wrong understanding could be a life-or-death matter. For an exhaustive treatment from Fowler’s The King’s English (1908), go to http://www.bartleby.com/116/213.html For a striking example of the inherent misunderstanding with which this is fraught, go to http://202.186.86.35/services/printerfriendly.asp?file=/2004/8/11/features/8537335.asp&sec=features, where you will find the following (in which “will” is evidently used in the older sense expressing resolute determination or force of will about one’s own action, and “shall” is an imperative, albeit in this instance a negative one): “THERE is an ancient story, which all students of English are forced to hear. It goes like this: a swimmer gets into difficulties. He cries out: “I will be drowned, and no one shall save me!” All who hear him turn away and leave the wretched fellow to his fate. That is because they believe he means it, and that he intends to drown. These tough-minded grammarians take it that the unfortunate swimmer is intent on suicide, and that it is none of their business.” Phil Kabza Senior Member Username: phil_kabza Post Number: 63 Registered: 12-2002 Posted on Wednesday, September 29, 2004 - 06:09 pm:    Shelby - thank you! You have renewed my sometimes flagging enthusiasm for specifications language. Now if only the attorneys would likewise determine that the specifier's language is equally intentional, and none of their business! I will write shall, and no one shall stop me! Anonymous   Posted on Wednesday, September 29, 2004 - 07:11 pm:    Ain't it ironic, that any specifier, whose sole test of competency is CSI formats, is automatically assumed to know more about product application than the tradesman who work with it every day. What goes around comes around. John McGrann Senior Member Username: jmcgrann Post Number: 32 Registered: 03-2002 Posted on Thursday, September 30, 2004 - 08:13 am:    Sheldon – In my mind the agreement, specifications, drawings, addenda, and subsequent modifications are all the same thing – contract documents. The parties are agreeing to perform in accordance with the contract documents, and the phrase “agree to” would appear to be a suitable replacement for the word “shall”. Of course, we are talking of a public sector client, most likely with their own set of contracts, forms, and rules of the game. The client’s attorney will have the responsibility to defend or advocate for the client, and if the word “shall” has the potential to cause linguistic heartburn, then he certainly has the responsibility to the client to advise the design team against using the particular word. That said, I concur with others that simple, imperative language is preferable for technical specifications and notes on drawings. The task of excising the word from my specifications would be easy, especially since the frequency of appearance is rare. Changing the mindset of those authoring notes on the drawings is another matter! Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 88 Registered: 01-2003 Posted on Thursday, September 30, 2004 - 10:04 am:    John: From your comment about your infrequent use of "shall" I assume you don't use "agree to" either. Yes, the contractor, in signing the agreement, does agree to do what's required by the contract documents - but then the logic of not using "shall" kicks in, i.e., everything is required and agreed to. If that's the case, then why say it, especially only in some cases? If it's needed for one requirement, it should be required for all, and we'd end up with every sentence beginning with "The Contractor agrees to..." I also use "shall" on rare occasions, when it's much quicker to clarify something that way than by writing a couple of long sentences. That doesn't happen often when using imperative mood. One of the things some of my consultants do that drives me crazy is use several words for the same thing, i.e., shall, should, must, is to, will, and agrees to. I was told of a court decision in favor of a contractor who argued that since some requirements were specified using "should" while others used "shall", they weren't mandatory, and he was justified in ignoring those he felt were too difficult. Helaine K. Robinson CCS Senior Member Username: hollyrob Post Number: 78 Registered: 07-2003 Posted on Thursday, September 30, 2004 - 10:44 am:    Why not take up a collection to buy this attorney the new CSI PRM? Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 89 Registered: 01-2003 Posted on Thursday, September 30, 2004 - 12:14 pm:    My PRM arrived in just minutes ago in today's mail - I'll finally get to find out what's on the CD! Helaine K. Robinson CCS Senior Member Username: hollyrob Post Number: 79 Registered: 07-2003 Posted on Thursday, September 30, 2004 - 02:15 pm:    Mine came yesterday - looks like everything's on the CD, also a handy glossary! Doug Frank FCSI CCS Senior Member Username: doug_frank_ccs Post Number: 85 Registered: 06-2002 Posted on Friday, October 01, 2004 - 08:44 am:    The note on the drawing reads “The wall shall be painted”. I understand the concept that the word “Shall” is to be interpreted as a statement requiring an action by the Contractor,, HOWEVER, when used as in the example above, I would be hard pressed to argue that as a direct instruction telling the contractor to paint the wall! To me it sounds like a quote from the Bible and will be done as an “act of God” (I hope you don’t reject a submittal from Her). Further,, “The wall shall be painted” (5 words); “Paint the wall” (3 words); “Paint” (1 word). Why would anyone want to write or type 5 words when three, or even one, is sufficient? Keeping with the spirit of this topic, I guess the note would actually read “The Contractor shall paint the wall”, right? That’s Six words! C. R. Mudgeon Senior Member Username: c_r_mudgeon Post Number: 29 Registered: 08-2002 Posted on Friday, October 01, 2004 - 08:52 am:    or "The Contractor agrees to paint the wall" to make it seven Shelby N. Gordonswyth Senior Member Username: shelbyng Post Number: 14 Registered: 08-2004 Posted on Friday, October 01, 2004 - 10:26 am:    As Doug points out, just using “shall” isn’t enough, if it isn’t used correctly. “The wall shall be painted” seems to leave open the question “By whom?” and to some may sound more “indicative future” than imperative. It lacks the directness of “the Contractor shall paint the wall”), let alone the force of “paint the wall,” which is clearly understood as a command directed at the Contractor. I wonder if the attorney may have misunderstood someone’s comment that “shall” should be avoided by using the imperative wherever possible, and understood that to mean that one should say that the contractor “must” do whatever... “Thou shalt not use ‘shall,’ 'will,' ‘must’ or ‘is to’ wheresoever the direct imperative verb wilt do...” J. Peter Jordan Senior Member Username: jpjordan Post Number: 17 Registered: 05-2004 Posted on Friday, October 01, 2004 - 11:15 am:    Or how about "The Contractor shall agree to paint the wall." (8 words) Helaine K. Robinson CCS Senior Member Username: hollyrob Post Number: 80 Registered: 07-2003 Posted on Friday, October 01, 2004 - 11:36 am:    What chance do we have of getting anybody but anal-retentive spec writers and attorneys to care about the proper use of language? John McGrann Senior Member Username: jmcgrann Post Number: 33 Registered: 03-2002 Posted on Friday, October 01, 2004 - 11:53 am:    All it takes is one highly publicized lawsuit that hinges on the particular use and definition of a word. The word "supervise" comes to mind. Lynn Javoroski Senior Member Username: lynn_javoroski Post Number: 152 Registered: 07-2002 Posted on Friday, October 01, 2004 - 12:16 pm:    So do the words "is" and "alone"... David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 360 Registered: 03-2002 Posted on Friday, October 01, 2004 - 12:32 pm:    How about: "Wall: Paint" Two words and one puncutation mark. "Less is more!" -Mies John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 272 Registered: 03-2002 Posted on Friday, October 01, 2004 - 01:26 pm:    Thanks for all of the input. I have checked Black's Law Dictionary, which has this as it's first definition for shall: "1. Has a duty to; more broadly, is required to." In addition, Black's usage note says that this is the only sense acceptable when drafting contracts. Black's has no definition for must, and outside of the noun form, no definition for will. The Merriam Webster definition is: "2a -- used to express a command or exhortation <you shall go> b -- used in laws, regulations, or directives to express what is mandatory <it shall be unlawful to carry firearms>." Merriam Webster defines will as used to express desire or choice. We've decided to take the route suggested by Anne and write a letter explaining our position as regards our documents. I don't care (too much, anyway) what they do with their contract conditions. Unless they direct us in writing to make the change, it's staying as is. We'll see how that goes! In response to the many who noted that it is preferable to avoid the use of shall altogether: We're very aware of that, and only use shall where other constructions become too awkward or unclear. (And occasionally where we haven't gotten around to cleaning up old lingering phrasing.) Though there aren't very many occurances, I don't want to have to search through and replace all these instances every time we issue a project manual on this program (which is expected to be two to three times per year.) To me, this sort of thing is purely busy work and a waste of everyone's time. Russell W. Wood, CSI, CCS Senior Member Username: woodr5678 Post Number: 22 Registered: 11-2003 Posted on Friday, October 01, 2004 - 06:04 pm:    My travels in legal circles yields: Until the end of the 17th century, both "will" and "shall" were used interchangably. Then, the scholars of the day decreed that "shall" in the 1st person ("I" or "we") would indicate futurity, but in the 2nd and 3rd persons ("you," "he/she," and "they")"shall" meant "must". On the other hand, "will" meant the exact opposite. 18th century grammarians enthusiastically adopted this directive and the "rule" was placed in copybooks. One must understand that 18th century grammarians felt their mission was to "purify" language and prevent "deterioration". Eventually, prescriptive grammarians ignored the distinctions between "will" and "shall" in the 1st, 2nd, and 3rd persons, and declared that "shall" meant "must" in all cases. Along the way, legal drafters adopted the mandatory sense of "shall", and that has caused trouble in legal construction ever since. The question of why legal drafters have not long ago substituted "must" for "shall" can only be answered by their reliance on precedent, the use of language previously used. Court decissions dealing with the words "shall" and "may" reveal a hodgepodge of interpretations. Often courts have construed "shall" as mandatory. But courts have also held "shall" to permissive. To eliminate confussion, follow the legal credo "he who has the best paper trial wins", and simply define your meaning of "shall" and "will" in your Division-0 or Division-1 Documents. Case closed! David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 361 Registered: 03-2002 Posted on Friday, October 01, 2004 - 06:07 pm:    I consulted with my attorney, Lawrence Pilon, Esq. in Chicago. Here was his response. Larry said I could quote him but that his response is not meant to be legal advice since he does not practice law in California. "I smell a fish. in my opinion any attorney who wants all of the "shall"s changed to "will"s (in a document that might wind up in front of a judge) knows that those two words have different legal meanings, and that a judge would know that too. This attorney obviously (to me, at any rate) wants to remove the mandatory intent of the language, for whatever reason. It would look even worse if (maybe after a round or two of discovery) it were discovered that there were two versions of the document floating around that show that, at some point in negotiations, all of the "shall"s were changed to "will"s. The judge would almost certainly conclude from this that whoever changed the words did so with the specific intention of making the provisions in question non-mandatory. If you truly want a "plain English" document, that a great idea. You must, however, make sure that your lawyer goes over the document to make sure that it is clear that whatever provisions are mandatory clearly remain so after the language change. The reason why legal documents are full of "legalese" is not because lawyers want to sound important, its because certain words and phrases have clearly understood legal meanings. If you mean "shall" (in its legal sense), say "shall," even if it makes you sound like a lawyer. The judge will understand." Anonymous   Posted on Friday, October 01, 2004 - 06:30 pm:    After reviewing the dialog in the discussion I am beginning to wonder if we should send our documents for legal review and comment. Where I am heading is that the statement was made that the drawings and specs are considered contract documents. If so, then should they, too, be reviewed by the legal counsel for correct legalese? The client's attorney wants certain language in the specifications. Since the specifications are not a stand alone document, and require the drawings, then maybe it would be prudent to send the drawings and the specifications to their legal council for review. Years later after both parties legal councils fight back and forth over the language in the drawings and specifications, then and only then will the project go out for bid. While the specifications and drawings are contract documents, they are also construction documents. They must convey information to individuals to construct buildings. While I agree that these things might end up in court, but to write them "to" be in court might not be right way to go. There are way too many discussions of off-shoring to have to explain to that person in India the "legalese" of shall vs. will or must. J. Peter Jordan Senior Member Username: jpjordan Post Number: 18 Registered: 05-2004 Posted on Saturday, October 02, 2004 - 01:54 pm:    By definitions, the Drawings and the Specifications are a part of the Contract Documents (see AIA's General Conditions of the Contract for Construction). While the executed Agreement and contract conditions deal largely with specifics of time, money, and terms and conditions, the Drawings and Specifications deal with that part of the contract which defines the scope of what the Contractor will do for the Owner (I know this is a little on the simple side, but bear with me). Attorneys and judges are well aware that the Drawing and Specifications, while they are "legal" (more correctly, "contract") documents, their form and content is largely defined by standards of practice, custom, and use. There are "terms of art" (such as the word "wythe") which cannot be found in a legal dictionary but are commonly understood in the construction industry. Any attorney who wants to dictate the precise nomenclature of Drawing annotations either has too much time on his hands or an open-ended hourly contract. Kenneth C. Crocco Senior Member Username: kcrocco Post Number: 10 Registered: 04-2003 Posted on Tuesday, October 05, 2004 - 05:11 pm:    the city attorneys in chicago have begun to require the word "must" in our contract language. It has largely been ignored as far as I know, however, I wonder what convention these attornies are going to. Shelby N. Gordonswyth Senior Member Username: shelbyng Post Number: 15 Registered: 08-2004 Posted on Tuesday, October 05, 2004 - 07:04 pm:    Something's afoot in the field of the law, and in part it apparently has to do with something that happened in California on January 1, 2001. What was it? Further searching turns up this: “Thoughts on "shall" from Joe Kimble. If you want to discuss this with him, send him an e-mail [kimblej@cooley.edu]: "Shall" has three strikes against it. “First, lawyers regularly misuse it to mean something other than "has a duty to." It has become so corrupted by misuse that it has no firm meaning. “Second -- and related to the first -- it breeds litigation. There are 76 pages in "Words and Phrases" (a legal reference) that summarize hundreds of cases interpreting "shall." “Third, nobody uses "shall" in common speech. It's one more example of unnecessary lawyer talk. Nobody says, "You shall finish the project in a week." “For all these reasons, "must" is a better choice, and the change has already started to take place. The new Federal Rules of Appellate Procedure, for instance, use "must," not "shall." “For a good discussion, see Bryan Garner, A Dictionary of Modern Legal Usage (2d ed. 1995), pages 939-942.” And this: “2004 California Rules of Court...Introductory Statement...Throughout the rules, "shall" and "must" are mandatory, "may" is permissive, and "should" indicates a nonbinding recommendation. "Will" indicates a future contingency or predicts action by a court or judicial officer in the ordinary course of events, but does not signify a mandatory duty. Whenever "must" is used in a new rule or an amendment to a rule with an effective date on or after January 1, 2001, it is synonymous with "shall" as used in the rules before that date... All of the California Rules of Court have the force of law.” And this: “2002—The Introductory Statement is amended to reflect the recently adopted council policy on the use of “must” instead of “shall.” The amendment also clarifies that local rules declaring optional council forms to be mandatory are preempted by rule 981.1, and reinforces the distinction between forms “adopted” for mandatory use and those “approved” for optional use.“ So, just as it is with a lot of other things, here it appears to be the lawyers' fault, for misusing, abusing and corrupting a perfectly good and honorable word to the point that it no longer means to many what it should to all, ultimately forcing the rest of us to change. Lawyers. California. Mighta known. Richard L Matteo Senior Member Username: rlmat Post Number: 68 Registered: 10-2003 Posted on Tuesday, October 05, 2004 - 07:26 pm:    I was once told by some experienced spec writers to avoid the use of the word "shall" in specifications! Since specifications are supposed to be written to the G.C. (ignore C.M's for now, instead of witing the following: "Contractor "shall" perform the following...." It should be written: "Perform the following..." This is pretty basic, but I don't have the time to delve deeper. As for California lawyers, nough said! David R. Combs, CSI, CCS, CCCA Senior Member Username: davidcombs Post Number: 9 Registered: 08-2004 Posted on Wednesday, October 06, 2004 - 08:36 am:    This certainly raises some interesting (if not rhetorical) questions: 1. Is the AIA Contract Documents Committee aware of this? 2. Which word will appear in the new '07 AIA Contract Documents? 3. If "shall," will they then be frowned upon by California Law (or attorneys in general)? 4. Possible revision #__? to the new PRM / MOP? Stay tuned . . . Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 36 Registered: 10-2002 Posted on Thursday, October 07, 2004 - 09:30 am:    I’m happy to say that I don’t understand California attorneys. <g> It has always been my understanding that construction law has it’s basis in contract law. The signing of an agreement by two competent parties to perform a specific task is an act where each party mutually accepts certain conditions as set forth in the contract documents. Contested contracts always [?] go first to the contract documents, if they exist, for relief provided the contract documents do not violate any statute. If the contract documents are properly prepared containing the appropriate definitions of terms applicable to the contract, either specifically defined within the contract documents or by recognized industry standard or customary usage, then those terms apply to the enforcement of that specific contract. Seems clear to me. Like the old commercial say, “Where’s the beef?” John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 278 Registered: 03-2002 Posted on Thursday, October 21, 2004 - 06:11 pm:    I thought I'd let the group know what the final outcome was with regard to use of "shall" in our specifications. Not surprisingly, I lost the argument with my client. He forwarded to me an e-mail from their outside legal counsel that directed us to get rid of the offending term. But the client greatly appreciated my carefully-worded and well-documented letter anyway because he didn't really like the City attorney's view. So, we "scored points" by making the argument and by making the necessary changes. (Actually, we added a definition to the Summary Section for the moment, since there wasn't time to do the whole revision process and get the docs out to bid. But the next phase must have the changes.) The attorney's e-mail included a few citations, and I did some other research on my own. The move away from the use of "shall" is, indeed, part of the plain-English movement in the legal profession. There are a few lawyers around the country who are spearheading this movement. Surprisingly, in spite of the apparently clear definition in Black's Law Dictionary, there are many cases where "shall" is used incorrectly. The thinking is, essentially, "since lawyers can't be counted on to use 'shall' correctly, they shouldn't use it at all." In addition, the recently-revised "Federal Rules of Court" and the "California Court Rules" call for use of terms other than "shall" when drafting rules, due to its ambiguity as used. The legal citations given to me were articles by Robert Eagleson & Michaele Asprey; Jim Main; and Joseph Kimble. (If you want them I'll forward them, but unless you have access to legal journals--I don't--they're not that useful.) Separately, I have looked at publications by Bryan A. Garner of LawProse, Inc. in Dallas, borrowed from an attorney here in Monterey, CA. (Yeah, I'm in California today.) I also found this reference on the web: http://www.plainlanguagenetwork.org/kimble/modest.htm. This article by Kimble has a brief section on the question of "shall" versus "must" in part 11. Bryan Garner has also written a good book called Garner's Modern American Usage, which is a general reference, not a legal one. Garner's book has a good discussion on "shall". He notes that it's used in "legal documents, in which shall purportedly imposes a duty <the tenant shall obtain the landlord's permission before making any changes to the premises>. ... shall seems likely to persist, but in law it is declining because of increased recognition of its hopeless ambiguity as actually misused by lawyers." After reading all of this I concluded that, as used by the specifying community, "shall" is most often correctly used. But I was convinced, anyway, that there are much better choices. The few remnants of "shall" have got to go. I'll be weeding them out of our office masters over the new few months. I will restructure most sentences that use it, and in some cases replace it with "must" or "is required to" or another term (I prefer the shortest ones). I also plan to discuss the issue informally with AIA regarding their contract forms, and ARCOM (since I'm on the Masterspec Architectural Review Committee). That's not a commitment to changing those documents, but merely talking about what I've found out. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 364 Registered: 03-2002 Posted on Thursday, October 21, 2004 - 06:59 pm:    Thus another reason to get rid of the word "shall" altogether! Tomas Mejia Senior Member Username: tmejia Post Number: 13 Registered: 09-2003 Posted on Thursday, October 21, 2004 - 07:01 pm:    John, Thanks for the explanation. According to the old MOP FF/170.2, "must" is not recommended. Is this the case with the new "The Project Resource Manual"? Tommy Margaret G. Chewning CSI CCS Senior Member Username: presbspec Post Number: 33 Registered: 01-2003 Posted on Thursday, October 21, 2004 - 10:43 pm:    For a term that isn't recommended for use in the old MOP, the word "must" sure gets a workout in the PRM. I used the search feature on the PRM disk and found "must" used 486 times in the book. Had to search for "grammar" to find the small paragraph on the proper use of language (paragraph 5.9.5.4). It did not mention "must" at all but did discourage the use of "Contractor shall". Curt Norton, CSI, CCS Senior Member Username: curtn Post Number: 68 Registered: 06-2002 Posted on Friday, October 22, 2004 - 08:36 am:    I don't have the final PRM, but in my draft copy, 5.8.2 Vocabulary (the last bulleted item) lists Shall and Will. It states that 'will' is for acts of the Owner or A/E, and 'shall' is for work required of the Contractor. "'Must' and 'is to' are not recommended." Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 93 Registered: 01-2003 Posted on Friday, October 22, 2004 - 10:00 am:    Not only does the PRM use "must" on many occasions, it also repeats information, and frequently uses complex sentences. It even includes illustrations! Horrors - how can this be? The PRM is not a specification, nor is it a "legal" document; it does not express obligations of parties to a contract or state absolute conditions of performance. The PRM is simply a reference book that presents an overview of the construction process. As such, it is - and should be - written in narrative form, and need not adhere to the rules of a manual of practice for writing specifications. Don Harris AIA, CCS, CCCA, CSI Senior Member Username: don_harris Post Number: 21 Registered: 03-2003 Posted on Friday, October 22, 2004 - 10:08 am:    Correct me if I'm wrong, but I think the discouraging of "Contractor shall" in the PRM is more for eliminating wordiness and encouraging the imperative form in specifications, rather than for any esoteric legal reasons. That being said, John's explanation and the web article cited give me many reasons to think about the word "shall". I did a word search of a recent Project Manual, and as much as I work to get rid of "Contractor shall", I was amazed at how many times the word "shall" survived. Phrases such as "Lesser thicknesses shall be permitted..." and "Cumulative error shall not exceed..." populate the PM. However, before I purge my documents of the word "shall", I think I'll do some additional research. Maybe we should wait until the lawyers and judges work it out. But wait, that’s no good, one of our Project Manuals will be the guinea pig. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 94 Registered: 01-2003 Posted on Friday, October 22, 2004 - 10:28 am:    Cumulative error: X inches maximum. William C. Pegues, FCSI, CCS Senior Member Username: wpegues Post Number: 313 Registered: 10-2002 Posted on Friday, October 22, 2004 - 10:50 am:    Sheldon, great response about the language of the PRM itself. Don, in your example where you state "Phrases such as 'Lesser thicknesses shall be permitted...'" that is an action of the architect (doing the permitting) and the real correct word would be "will" rather than "shall" just as noted by Curt above that shall is reserved for the contractor, will for the owner and A/E. William Shelby N. Gordonswyth Senior Member Username: shelbyng Post Number: 16 Registered: 08-2004 Posted on Friday, October 22, 2004 - 01:06 pm:    In the post that started this, John's Bunzick's "California public-agency client...advises that their attorney will not permit the use of the word 'shall' in any manner in the contract or the specifications. We are supposed to use either alternative sentence constructions, or one of the words 'will' or 'must'...Has anyone...become aware of a change in legal approach with this word?" Well, now we all have (those following this thread). The change has been explicit, and officially mandated, in certain jurisdictions. Courts can and do establish rules for attorneys, court proceedings and court documents in their respective jurisditions. Those rules are limited. Similarly, legislative bodies commonly understand the word "language" as a term of art meaning "wording" or "verbiage," in regard to bills and laws, but no one would want use of that jargon term to be required of everyone. "Shall" and "will" have longstanding specific meanings by industry consensus ("shall" is imperative for the Contractor, "will" is "optional" for acts required of the Owner or Architect), and the use of "must" and "is to" are not recommended. The new Project Resource Manual/CSI Manual of Practice explicitly maintains the distinction. And, if any authority governs specifications practice and definitions of construction terms, the PRM/CSIMOP would be that authority, especially since this reflects the long-established professional standard. (SpecsIntact documents (for Army, Navy and NASA work) are predominantly "shall be" specs, despite the explicit and official policy that recommends use of imperative verbs. They have way too many "shall be's" to warrant cleanup by users.) A further pitfall of requiring "must" and banning "shall" is that the industry might retrogress, replacing imperative verbs with "The Contractor must..." In effect, we'd be back where we started, weighted down by legalese, just using a different term – not without its own share of confusion. Remember, "shall" came from legal terminology in the first place. Lawyers (not generally prone to being concise) used it routinely as an imperative phrase. The current problem with that legal usage apparently stems from widespread misunderstanding and misuse on the part of the legal profession, which blurred the distinction, as well as the recognition that many--perhaps most--non-lawyers aren't even aware of the distinction. (I for one never quite grasped it in grammar school; I distinctly remember that it seemed counterintuitive.) In such circumstances, using "must" for "shall" in legal documents may make sense. But the courts should stop short of practicing design without a license. (The late architect and specifier Clark Moore told of a meeting where an Owner’s attorney claimed the ultimate right to determine specifications content, on the ground that they were "Contract Documents;" which can be modified only by an attorney. Clark pushed the specs across the table, saying, "OK, you edit them.") Perhaps, in each Project Manual, we should call attention to the respective usages of "shall" and "will" within the CDs. In certain jurisdictions such as California, we might add that verbs in the imperative mood are generally directed to the Contractor as obligations, in other words, they are commands -- mandatory requirements -- with which the Contractor must comply. There, you said it. By definition. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 279 Registered: 03-2002 Posted on Friday, October 22, 2004 - 03:31 pm:    Actually, we did have language regarding the "style" of specifications as being in the imperative mood. That wasn't enough. And while I'm sympathetic to the argument that attorneys shouldn't practice design (they don't want us to practice law, either), it is attorneys and the courts (judges are usually attorneys, too) who are doing the interpreting when something goes wrong. Therefore, we do need to take our cues from what's going on in the legal profession. I am going to hazard a guess that the PRM's suggestion to avoid "must" comes, ultimately, from legal sources back when the MOP was originally crafted. If the legal profession's changing, slowly, we should too. I'm not too worried about reverting to the-contractor-must types of construction in specs. If someone is paying close enough attention to this issue that they've decided to eliminate shall, they probably wouldn't go back to the longer sentence constructions. All of the reading I did also noted that even in common usage, "shall" and "will" have become synonymous. This is acknowledged in some dictionaries, and is part of the problem with using "shall". I also found discussions on the various meanings that "shall" has in legal writing. Even though we think that all of the uses in specifications and construction contracts of the word "shall" mean "is required to", this is not actually true. In some forms, like "carbon steel shall not be used", the term actually means that "permission is not given". Shall also has the defect of having an unintended subject: The sentence "Notice to the Architect shall be made in fifteen days" has "notice as the subject, and depending on context could be misconstrued. The sentence "The owner shall be reimbursed for inspections required due to deficient work" has been interpreted as an entitlement, not a duty (which we intended to put on the contractor.) I'm just citing a few of the shades of meaning from some of my readings, but not as compellingly as they did. It's much less straight forward than I thought when I delved into this subject. Ultimately, though, I'm finding it very easy to avoid "must" in nearly all instances when recrafting sentences, so I'm not sure this is really very much of a concern. Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 37 Registered: 10-2002 Posted on Friday, October 22, 2004 - 06:44 pm:    <<Maybe we should wait until the lawyers and judges work it out.>> And who represents the design professions in this scenario? The architectural profession has been led by the nose by developers for years - now we should let the attorneys take over? Shelby N. Gordonswyth Senior Member Username: shelbyng Post Number: 17 Registered: 08-2004 Posted on Monday, October 25, 2004 - 09:51 am:    Perhaps we should ask the courts how to define "provide" -- another tricky word that has long been given a specific meaning in the context of specifications, but one that also needs to be defined in the documents. I'm sure they would love to furnish and install some wisdom on that... Don Harris AIA, CCS, CCCA, CSI Senior Member Username: don_harris Post Number: 22 Registered: 03-2003 Posted on Tuesday, October 26, 2004 - 11:17 am:    <<Maybe we should wait until the lawyers and judges work it out.>> was intended to be facetious. Sorry for the lack of clarity. Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 38 Registered: 10-2002 Posted on Tuesday, October 26, 2004 - 12:17 pm:    <<Maybe we should wait until the lawyers and judges work it out.>> Don: Sorry, I didn't intend to make the statement sound so strong. I originally read your line as a facetious statement but the more I thought about the statement the more I remember over the years that the design professions have sat back on their hands where they should have taken a more proactive role. Hope this doesn't happen here. Ron Tom Heineman RA, FCSI, SCIP Senior Member Username: tom_heineman Post Number: 32 Registered: 06-2002 Posted on Wednesday, December 01, 2004 - 03:50 pm:    I went over this discussion with a grand old structural engineer of the Imperative School. He and I readily agreed that attorneys have no more business practicing philology than they have practicing design. However, why not extend that to cover theology? His suggestion is that every "shall" should be replaced with "shalt". Barring objection from the ACLU, that might just do the trick. (Let's hope that in the thick of a dispute the owner and engineer do not wilt.) J. Peter Jordan Senior Member Username: jpjordan Post Number: 25 Registered: 05-2004 Posted on Tuesday, December 07, 2004 - 06:48 pm:    With respect to Mr. Heineman, "shalt" is related to the 2nd person familiar ("you shall" and "thou shalt"). This is relatively archaic usage, and most of us have had contact with it only in archaic church language (the King James Version of the Bible or Cramner's Prayer Book used by the Anglican Church). Most of this has been updated with revisions and new translations published between 1960 and 1990 although one may still run across it from time to time. Other languages have retained the 2nd person familiar for use in conversation between people who have a familial or intimate relationship. Its use is inappropriate in a formal or secular contractual setting. Use of this form is entirely inappropriate in writing specifications. C. R. Mudgeon Senior Member Username: c_r_mudgeon Post Number: 32 Registered: 08-2002 Posted on Tuesday, December 07, 2004 - 08:43 pm:    You're kidding, right? Dave Metzger Senior Member Username: davemetzger Post Number: 95 Registered: 07-2001 Posted on Tuesday, December 07, 2004 - 09:19 pm:    Thou shalt get a life. Anonymous   Posted on Tuesday, December 07, 2004 - 09:54 pm:    Hither I pray that 'tis Squire Jordan's tongue that hast been planted firmly in his cheek. John Regener, AIA, CCS, CCCA, CSI, SCIP Senior Member Username: john_regener Post Number: 198 Registered: 04-2002 Posted on Wednesday, December 08, 2004 - 12:34 pm:    Dude, just do it. Ya know what I'm sayin' ? Lynn Javoroski Senior Member Username: lynn_javoroski Post Number: 163 Registered: 07-2002 Posted on Wednesday, December 08, 2004 - 12:38 pm:    Like REALLY? That is SOOO HOT!? I just think words are sooo cool, ya' know? We should use more of 'em? Really? 'cause it's cool? J. Peter Jordan Senior Member Username: jpjordan Post Number: 27 Registered: 05-2004 Posted on Thursday, December 16, 2004 - 04:32 pm:    Actually, I wasn't kidding, but... Dude! I am, like, thoroughly intrigued (to the max) by the notion of, like, developing a specification section in, like, valspeak. It would be, like, so kewl, dude! Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 212 Registered: 02-2003 Posted on Friday, August 12, 2005 - 10:27 am:    Have you picked up on Ron Geren's article on this subject posted under "Other Newsletters and Articles"?