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Why do legal documents use Shall rather than Will?

February 20, 2015 at 8:00 pm Comments disabled

Logo for Quora, where Dana Shultz answered a question about using Shall rather than WillThis post, about why many legal documents use Shall rather than Will, is based on a Quora answer that I wrote. See Why was “should” substituted for “would” in the 1800s? For example, why did people say, “I should like to have some pie” rather than “I would like to have some pie”?

Future Tense – Shall vs. Will

Although few people other than linguists are aware of the following, proper use of shall or will in the future tense depends on whether the subject is the first, second or third person. For example:

Singular:

  • I shall go.
  • You will go.
  • He/she/it will go.

Plural:

  • We shall go.
  • You will go.
  • They will go.
 Emphatic Future Tense – Shall and Will Switched

However, there is an emphatic future tense, which denotes purpose, duty or obligation and where the auxiliary (shall/will) is switched:

Singular:

  • I will go.
  • You shall go.
  • He/she/it shall go.

Plural:

  • We will go.
  • You shall go.
  • They shall go.

The foregoing is largely unknown because, at least in part, the shall/will distinction has been eroding.

Third Person Emphatic – Shall rather than Will

One commonly sees shall used with the third person in statutes, contracts and other legal documents. I long considered this an affectation, designed to make legal text appear more formal and induce the reader to take it more seriously. Accordingly, several years ago I banished shall from most of the legal documents that I prepare in the interest of making them easier, and more natural, for non-lawyers to read.

I now realize that use of third-person shall rather than will in legal documents has a linguistic basis (emphatic future tense). The difference from common usage, of course, is that in the legal context third-person shall has eroded only slightly. (I will continue not to use it.)

Dana H. Shultz, Attorney at Law  +1 510-547-0545  dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.

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