‘Shall’ in English contracts

I recently heard a webinar by Christin Dallmann and Richard Delaney on translation problems in contract law. I highly recommend these webinars. It reminded me of that old chestnut: do we use ‘shall’ in a contract (when drafting or translating)?

Richard Delaney has now written a guest post on the use of ‘shall’ in Kevin Lossner’s Translation Tribulations blog, https://www.translationtribulations.com/2021/05/richard-delaney-on-shall.html. Kevin writes that this text was originally part of a social media discussion, but I don’t know where that was and didn’t see it. I am not going to argue point-by-point with Richard’s summary, just set out my own.

I think the mandatory verb in a contract can be shall, will or must. It ought to be used exclusively (some English contracts mix shall and will). I do not think the choice of verb form is likely to confuse any reader. The reader will realize that the verb imposes an obligation.

I posted on this on March 1 2013, since when I have surely changed my mind in some ways.
Shall I or shan’t I? Shall, must and the plain language brigade. The comments are interesting though.

Thornton on legislative drafting is relevant too, although it’s about legislation, not contracts.

  1. I use shall in the imperative or mandatory sense when I translate from the German (as Richard does). I use it even when it is not clear from the German original who the duty is imposed on.

One of the commenters on Kevin’s blog, Stephen Rifkin, writes:

According to the legal experts I have consulted in books and person, “shall” is very simple – legal obligation. A body, personal or legal, can have an obligation. Therefore, it is correct to say: The Tenant shall pay the rent on the 1st of the month but incorrect to say that “The rent shall be paid on the 1st of the month.”

I understand his point, but I would use shall here too, despite the lack of a subject. It does annoy me when German contracts appear to impose duties without indicating who is responsible, but I wonder what the alternative translation would be – varying the verb when the German doesn’t?

One objection to shall I have read recently is that since it is used in a variety of ways, it is more confusing than must for non-native speakers of English who nevertheless have to make do with English translations (rather than Arabic or whatever). That seems possible.

As often mentioned, Bryan Garner is an advocate of avoiding shall altogether (in original English contracts, of course). I think he got this from a movement in Australia and Canada. He lists something like 16 uses of shall, most of them unsatisfactory.

Writers who advocate plain English in law also condemn shall. One argument I’ve read is that if shall is used in different ways within one contract, a court might query whether it has a mandatory meaning at all. I would certain advise against using shall in more than one sense (for example, ‘If the landlord shall…’). Of course, I am not drafting a contract, but always translating a contract where the German version is defined as binding, so I doubt that a messily translated contract would be challenged in court, but you never know.

  1. Instead of shall, will can be used. If either party will do something, this is a promise by a party to the contract that has a binding effect. Some English contracts I have seen use both will and shall, for example, ‘the insurer will’ and ‘the insured shall’. This mixture is likely to confuse readers and so it is better to use either one or the other consistently when translating into English. Geoffrey Leech, see below, calls it a ‘quasi-imperative’.
  2. A third possibility is must. This is perfectly possible and avoids any unclarity. My only objection is that it sounds a bit unnatural to me.
  3. English grammar books not specifically about legal texts: when I first wrote about the use of shall, will and must for legal translation students, I was also teaching English grammar to a wider group. My understanding of English verb forms – tenses and modals – was based on the second edition of Geoffrey Leech’s book ‘Meaning and the English Verb’. I can’t agree with some writers who describe will and shall as ‘simple future’, because both verbs have a variety of uses and there is no simple future.

I will quote the third edition of Leech on will in contracts.

There is a difference between the will of insistence above and a QUASI-IMPERATIVE will found with second- and third-person subects: You will do as I say. The Duty Officer will report for duty at 0700 hours. This will is a stronger equivalent of must, and expre000sses the will of the originator of the message, rather than of the subject. It also differs from the will of insistence in that it is not strongly stressed. The quasi-imperative will seems to be a special use of the future will of ‘prediction’, the implication being that the speaker or writer has so much authority over the addressee that failure to perform the predicted action is out of the question. Hence it has military and despotic associations.

The verbs shall and will can be used to refer to the future but also as modal verbs (there is some overlap between future and modal uses). There is no ‘simple future’. For example, the German ‘morgen fahre ich nach Hause’ is not translated as ‘I will go home tomorrow’, but usually as ‘I am going home tomorrow’. ‘I will go home tomorrow’ might be said at the moment of decision or as a promise. Without going into more detail, in a contract I have always seen ‘The insurer will…reimburse’ as a promise made in a contract and therefore binding. (But Geoffrey Leech calls it ‘quasi-imperative’, see above).
When giving examples of usage, it is a good idea to stick to the affirmative use, excluding negatives and questions, which only confuse the description.

And on shall:
RULES AND REGULATIONS (with second-person or third-person subjects)
A player who bids incorrectly shall forfeit fifty points {rules of a card game. The hood shall be of scarlet cloth, with a silk lining of the colour of the faculty {rules for academic dress}.
This usage is found only in legal or quasi-legal documents. Here shall could be replaced by must (=’obligation’), or by the ‘quasi-imperative’ will.

  1. Use of present tense in German contracts.
    Something Richard Delaney mentioned in the webinar that I have never commented on but that is a constant problem is that the present tense in German contracts is usually used to mean an obligation, but it can also be a statement of fact.

Bryan A. Garner, Garner’s Dictionary of Legal Usage, 3rd ed. 2011

Bankers boxes

Following on from the previous post, it seems that US/UK banker’s boxes are similar to the German ones.

Assembling a bankers box – Youtube video. This isn’t quite the same as the German boxes, but a similar principle.

And Thomson Reuters legal blog has a post Why do they call them Bankers Boxes?

It seems that the inventor, Walter Nickel, sold these boxes to banks to store records. He sold the rights when he was called up for WWI in 1917 (did he survive?). The buyer, Harry Fellowes, named his company the Bankers Box Company. It later became Fellowes.

Legal stationery – the topic that keeps on giving.

Thanks to Tom West.

Removal boxes Germany and England

The German Bücherkarton uses a cunning folding system that holds it together without tape. Are other German removal boxes the same?

The British removal box first has to be taped all round the base, then after it is filled it has to be taped round the top. Query whether the box can be reused after the effort of taping and then cutting open.

LATER NOTE: Tom West tweeted me about the existence of banker’s boxes in the USa – and seemingly in the UK too – see following entry.

Blog birthday missed

Contrary to appearances, this blog is not yet dead. However, I did not mention that on 16 April it was 18 years old.

To make up for it, here is a photo I took on April 14 near Fenchurch Street Station.

Notarial string, thread or yarn

The Pencil Talk blog has a new post on notarial string. I wrote about this in December 2004! (Links are unlikely to work now). Which reminds me that this blog is coming up for a birthday in April, if it survives that long.

Pencil Talk has some great photos of notarial string and seals. As it says, each German Land has a different-coloured string, and there is a federal one too. Useful links there, for instance to a list of all colours of string.

Here is a picture of what I found – some green English ribbon and some Federal German notarial string.

There’s a link to an article on treasury tags in the Bleistift blog.

I think English notaries public use ribbon, as barristers do. The ribbon may be green, and for barristers pink, but it’s entered the language as ‘red tape’.

Translators in Germany sometimes use notarial string, but then they argue about whether they are allowed to or not.

Edited to add a picture of a bodger lookalike.

What I knew as a bodger, which punches a single hole in the corner of a bundle of papers, ready to take the treasury tag, did not have a hole for thread.

It’s been pointed out to me in a comment on the Bleistift blog that bodger may be called awl or pricker. Awl seems to be right. Here’s one of many.

40% German blog (and podcast)

I’m just logging in to make a gesture towards posting in 2021, post Brexit and mid-Covid.

I have only just discovered Nic Houghton’s blog 40% German, subtitled Pretzels, Beer and Confusion.

Nic is a Geordie who has been living in Germany since 2011 and writes about that. Topics include:

Annoying the Germans: Small Talk
The Eye of the Beer Holder
The Two Sides of Germany’s Cutting Edge
Germany’s Class System
How Healthy is Germany?
Königreich of Kebabs

and all those other topics I have wondered about over the years.

The first thing that caught my attention was a post on integration, Integrating the Germans. A recent discussion with local Bavarian villagers about immigrants to their village not really joining in turned out to be referring to people from Nuremberg who wanted to enjoy the village social life without contributing to it themselves.

This put in stark relief, in my mind at least, the problem of integration. How can anyone in Germany expect peoples from vastly different cultures to integrate into German life, if we still have problems integrating Germans into German life. It also made a mockery of the expectations that some people seem to have that immigrants from all over the world will suddenly become their particular brand of “German”. I’m not sure it can boiled down into some checklist. Politicians in the past have tried, making bold statements about the need for a Leitkultur or a Guiding culture that defines for immigrants the way they should behave, but which culture? Is it the one from the North or the South, the East or the West?

He also has a podcast, Decades from Home, together with Simon Maddox, which I’m listening to now.

Decades from Home is a podcast that looks at the weird and wonderful of German life from the perspective of two non-Germans.

With over two decades of living in Deutschland between them your hosts, Nic and Simon, find news articles and tell stories that show the many different sides to German life.

The three dogs

Die drei Hunde is a fairytale by, or collected by, Ludwig Bechstein, whose stories sold better than the Grimms’ in the 19th century.

The hero kills a dragon and wins the princess with the help of three dogs, who in the English version are called Salt, Pepper and Mustard. Their German names are Bring Speis’n, Zerreiß’n and Brich Stahl und Eisen (Bring Food, Tear Apart and Break Steel and Iron).

I wonder who thought of the English translation? I wonder if it was Anthea Bell. Bell, Anthea, tr. Fairy Tales of Ludwig Bechstein. Ill. Irene Schreiber. London: Abelard-Schuman, 1967. She did translate Asterix very wittily.

Anthea Bell, obituary

Arbeitszeugnis and translation

Note: this weblog now redirects to transblawg.co.uk. The old address will stop working before Brexit, so please change details in your address list.

I have written about Arbeitszeugnis/reference here before: Translating references/Übersetzung von Arbeitszeugnissen and Zur vollsten Zufriedenheit: voll verwirrend für Übersetzer. There is probably enough there.

But I have just attended two out of three webinars on German employment law run by the BDÜ and presented by Christin Dallmann, and she spoke at some length about Arbeitszeugnisse, assuming that we are often asked to translate them.

When I was in Germany, I was asked a few times but always refused. It depends what kinds of clients you work for, of course. As Frau Dallmann said, one could translate one literally and add a footnote explaining that German references, to which an employee has a legal right, are written in a secret language, at least the type called qualifiziertes Arbeitszeugnis rather than einfaches Arbeitszeugnis are.

I now understand even more about the secret language than I did before. The secret language has been confirmed and developed by the courts. They have four elements: employer’s satisfaction (Zufriedenheitsfaktor), time (Zeitfaktor), conduct (Verhaltensbeurteilung) and conclusion (Beendigungsformel). So even the last sentence may imply more than the surface indicates: whether the employee was dismissed, or whether the decision to leave was amicable.

Here’s a question on Toytown Germany from a Canadian who wants to understand his surprisingly positive-sounding Arbeitszeugnis – we never find out if it turned out to be negative.

And here is a good description of German references at Squire Patton Boggs.

Zeugnisfabrik apparently translate references in both directions. But the suggestion of converting an English reference into a German Arbeitszeugnis seems highly dubious and possibly illegal to me:

Accordingly, German Arbeitszeugnisse have to adhere to certain form specifications and the language in which they are written has developed peculiar characteristics that need to be skillfully balanced to ensure that all legal requirements are met.

As a consequence, the translation of a reference letter into an Arbeitszeugnis will always necessitate professional knowledge not only of both languages, but of German legal requirements, as well.

London Transport photos

Not all disabilities are visible.
Face covering compliance official
Please do not use this seat
You must wear a face covering on public transport
COVID-19 stairs
Stay Safe Leave a space
Please keep your distance
Train presentation team (wiping backs of seats with disinfectant)

China Law Blog on drafting international contracts that work

Dan Harris, of Harris Bricken, writes China Law Blog – the latest entry answers a translator’s question on how a US common-law contract ‘translated’ into Chinese works in practice: Drafting International Contracts That Work.

I am a translator helping a U.S. company on its contracts and — to put it mildly — things are not going well. The deal I’m translating for has been running into a lot of trouble because the American law firm that wrote the contracts has written them in highly complex legalese. …

Harris’s approach is: if a contract between a US and a Chinese company is drafted in long-winded US style (78 pages with a lot of boilerplate and elevated language in one case), his law firm has lawyers create an equivalent contract in Chinese, both simpler to understand and likely to be understood and accepted by the Chinese courts.

The post also quotes a 2015 post on the Adams on Contract Drafting blog where Ken Adams interviewed Steve Dickinson of China Law Blog on the same subject. Dickinson says:

I should also add that Chinese lawyers have major problems interpreting U.S. and British common law contracts. Their standard approach is to guess at the meaning and then mistranslate and then work with the mistranslation, leading to disaster on all counts.

Although it is clear that the Chinese prefer a short English contract written in a simple style, I get the impression that the Chinese version is always going to take precedence, plain English or not.

The problems of using English as a language for international contracts are dealt with in wonderful practical detail in Triebel/Vogenauer, Englisch als Vertragssprache.