[copyleft-next] use of "shall"

Richard Fontana fontana at sharpeleven.org
Tue Nov 27 05:18:24 UTC 2012


On 11/26/2012 10:04 PM, Luis Villa wrote:
> 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".

The problem with "should" is that in ordinary English it suggests
something a bit more like 'wishful thinking' than what I believe
lawyers mean by 'shall' in the way these kinds of clauses are
typically worded. There's even a tradition in free software/open
source licensing culture of treating "shall" as mandatory language and
replacement of "shall" with "should" as elimination of mandatoriness.

I'd be willing to go with this:

  The invalidity or unenforceability under applicable law of any
  provision of this License does not affect the validity or
  enforceability of the remainder of this License. Such provision is
  to be reformed to the minimum extent necessary to make it valid and
  enforceable.

Though the second sentence no doubt violates some pedantic Adams rule
against use of the passive voice. :)

- RF




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