DifferenceBetween Will and Shall in Contracts

【Abstract】‘Shall’ impliesthat a person has a duty or obligation to perform a certain action.‘Will’denotes a situation in which a person is willing, determined or has a strongdesire to carry out a certain act.The use of the term ‘Shall’ reflects theseriousness of the obligation or duty in that it is like a command, mandatoryor imperative.

Will vs Shall inContracts

Itis very important to take note of the difference between will and shall incontracts, because they express different meanings orintentions. However, before looking at the legal field for the usage ofwill and shall, we can first see how they are generally used. The terms ‘Will’and ‘Shall’ are two widely used grammar terms. Althoughtheir origins date back many centuries, today they are commonly usedinterchangeably. In fact, many people tend to substitute one term withthe other leaving those attempting to spot the distinction between the two,confused. The term ‘Shall’ was traditionally used torefer to the compulsory performance of some duty or obligation.Indeed, conventional grammar books reveal that ‘Shall’, when used in the first person,refers to a future event or action of some sort. However, when used in thesecond or third person, for example “He Shall” or “You Shall,” it denotes theperformance of a promise or obligation. ‘Will,’ on theother hand, represented the reverse, in that when used in the first person itconveyed the performance of a promise, and when used in the second or thirdperson, it implied a future event. Legally too, the terms pose a certainproblem. Drafters of contracts or otherlegal documents spend a good deal of time mulling over which term to use in acertain clause in order to express the desired meaning or intention. Despite modern practices that use the terms synonymously, itis best to be aware of the subtle yet traditional distinction between the two.

What does Shallmean in Contracts?

Theterm ‘Shall’, according to Black’s Law Dictionary, means ‘has a duty to’. This definition illustrates a compulsory aspect associated with the duty specified.Thus, it is mandatory on the person or legal entity performing the duty. Incontracts, the word ‘Shall’ is traditionally used to convey a duty or obligationin relation to the performance of the contract. Keep in mind that contracts aregenerally written in the third person. Therefore, the use of the word ‘Shall’,particularly in the third person, connotes a sort of command, thereby renderingthe performance of an obligation or duty imperative.Simplyput, ‘Shall’, particularly in contracts or legal documents such as statutes,generally refers to some form of compulsory action or the prohibition of acertain action. Commentators on the use of the word ‘Shall’ in contractsadvise that it is best to use ‘Shall’ when imposing an obligation or duty on aparticular person or entity that is party to the contract.

What does Willmean in Contracts?

Itis not uncommon to notice the word ‘Will’ used in contracts also to imposeobligations or duties. Traditionally, this isincorrect. The term ‘Will’ has been defined as expressing willingness,strong desire, determination or choice to do something. As mentionedbefore, contracts are written in the third person and the use of the word‘Will’ in the third person denotes a sense of futurity or rather it refers tosome future action or event. It has been widely noted that the use of the word‘Will’ in contracts should only imply some future action or event and shouldnot be used to create obligations, although this is nota strict rule. Thus, many drafters of contracts,for ease and clarity, use the word ‘Will’ to express a future event andcontrastingly use the word ‘Shall’ to impose an obligation.

What is thedifference between Will and Shall in Contracts?

•‘Shall’ implies that a person has a duty or obligation to perform a certainaction.

•‘Will’ denotes a situation in which a person is willing, determined or has astrong desire to carry out a certain act.

•In contracts, ‘Shall’ is used to impose obligations or duties on the parties tothe contract.

•‘Will’, on the other hand, is used in contracts to refer to a future event oraction. It does not impose an obligation or duty.

• Theuse of the term ‘Shall’ reflects the seriousness of the obligation or duty inthat it is like a command, mandatory or imperative.