My Musings on Construction Law Week 10B
Does “Shall” when used in a Contract mean “Must” or “May” ?
Can anybody also explain why “Must” is never used in a contract document ?
I was asked recently the above two questions by a reader. So I did some research and come up with an answer. So here goes ….
P/s : Below is an extract from www.differencebetween.com April 11, 2013 as passed by Admin, except for the last 3 para which is my own.
Must Vs Shall
Must and shall are words in English language that have similar meanings. Both of them indicate the fact that something is mandatory and should be carried out as a duty. However, shall is used more in legal circles while must is used more often by common people.
Many believe shall to be more formal of the two and fit for use in legal documents and contracts to stress a role or responsibility. This article takes a close look at these two words to find out if there are any differences between the two or not.
Shall
Shall is a verb that indicates a strong desire, intention or assertion. It also refers to something that will take place in the future. It is also used to give an order or make a promise.
It also indicates the inevitability of something or an event. Take look at the following examples to understand the meaning and usage of shall in the English language. It is similar to will when used in first person.
. You shall complete the job by tomorrow (order)
. The train shall arrive tomorrow noon (future event)
. Justice shall be served (inevitability)
. The tenant shall make payment on every 5th day of a month (obligation)
Must
Must is a word that indicates the necessity or requirement of something. It can be used as a noun when it means something not to be missed or overlooked. It is something that isobligatory in nature or is required by law. It is also used to express physical necessity. Must also helps in arriving at a conclusion by using logic. Here are some examples of must to male it used and meaning clear.
. You must register to be able to vote (requirement)
. We must have oxygen to survive (Physical necessity)
. You must not play after dark (command)
Shall Vs Must
. Shall is used to indicate a legal requirement as in law and contracts.
. Shall indicates a duty imposed upon an individual.
. Must is used when the subject is inanimate.
. Must is used in everyday speech.
. Shall connotes weightiness and looks pretentious while must looks natural when speaking.
There you have it folks. In a nutshell,
“Shall” when used in a legal document such as a contract means “Must”.
However to be precise and leave no room for error, most modern contracts now includes and define the word “Shall” by indicating under Sub Clause 1.2 of FIDIC Red Book as Follows:
1.2 Inter pretation in the Contract except where the context requires otherwise:
(e) the term “Shall” when associated with the Contractor denotes a mandatory requirement of the Contract.
A simple fact but extremely important.
For those of you who found my weekly musings informative and helpful, I have posted 45+ posts at www.medium.com. You can access them there. You can use this link to find me at :-
https://lhchin.medium.com.
Hope to see you guys signing up as my followers.
For those of you who found my weekly musings informative and helpful, I have posted 58+ posts at www.medium.com. You can access them there. You can use this link to find me at :-
https://lhchin.medium.com.
Hope to see you guys signing up as my followers.
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