[copyleft-next] use of "shall"

Luis Villa luis at tieguy.org
Tue Nov 27 03:04:52 UTC 2012


Attention conservation notice: minor drafting quibbling follows.

Secs. 11.4 and 15 should probably be redrafted to remove shall.

Shall should only be used under very specific circumstances- basically
as a synonym for "has a duty to."

There is a very extensive discussion of this on p. 22-30 of Ken Adams'
Manual of Style for Contract Drafting
[http://books.google.com/books?id=n7-jxMskU9MC&pg=PA22#v=onepage], and
a summary at http://www.koncision.com/revisiting-use-of-shall-in-contract-drafting/

The following summarizes the position [from
http://www.adamsdrafting.com/2008/11/18/shall-will-must-exchange-emails/
]:

"I recommend using [shall] to impose an obligation on the subject of
the sentence, as in 'Acme shall purchase the Shares'. The initial test
for disciplined use of shall is whether you can in your mind replace
it with “has [or have] a duty to.” This simple test goes a long way
towards restraining overuse of shall."

Secs. 11.4 and 15 fail this test, and so probably shouldn't use
"shall" as currently drafted:

Sec. 11:

"Your right to make copies necessarily incident to running Covered
Works [have a duty to] never be terminated."

Because I'm unclear on the purpose of 10.4 (see thread from some weeks
ago), I can't offer advice on how to improve it.

Sec. 15:

"If any provision of this License is invalid or unenforceable under
applicable law, it [has a duty to] not affect the validity or
enforceability of the remainder of this License..."

shall -> will ("it will not affect...")

"and reviewing courts [have a duty to] reform such provision to the
minimum extent necessary to make such provision valid and
enforceable."

This is not grammatically incorrect, but it's a little odd, since the
courts have no duty here to do anything. :) Could use instead: "and We
intend that reviewing courts should reform..." or simply "reviewing
courts should reform".

For slightly more discussion of exactly this sort of clause, see:

http://www.koncision.com/koncisions-severability-provision-now-featuring-language-of-intention/

and

http://www.koncision.com/feast-your-eyes-on-koncisions-new-severability-provision/

Two more cents-
Luis


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