What is the difference between “shall” and “will” in a contract? Of course, as always the answer in any specific case will always depend on the context and the intention of the parties. However, we should try to avoid the potential for misunderstandings and uncertainties in our drafting.
The traditional approach of lawyers in the past has been to utilise “shall” because of its ubiquitous application as part of the general language of legalese. As a client said to me once when rejecting my use of “will”, ” ‘shall’ just sounds more legal!”
But tradition alone is not a justification for the excessive use of the word in contracts: If weather conditions shall continue to prevent completion of the work for a period exceeding 10 days, the Owner shall be notified by the Contractor in writing of the delay. Not only do such sentences break the grammatican “if clause” rules of English, but they also can only lead to ambiguity in a contractual context. Are the “shalls” describing a duty or simply an event which may or will happen in the future?
I would suggest that in contract documents the future should be defined by “will” and, if used at all, “shall” should be reserved for duties or obligations only. If necessary, this should be explained in the definition or interpretation clauses. This will make the language clearer and your contracts easier to understand, especially for second-language speakers with no background in Legal English, the law or drafting traditions.
Happy drafting!