A recent Illinois Supreme Court opinion added fuel to the long debate over “shall,” a word historically used to convey a mandatory or prohibited action in contracts and legislation. (Thanks to Legal Writing Prof for posting about it.)
In People v. Geiler, the defendant argued that a traffic citation should be dismissed because the police failed to transmit it to the court within 48 hours, as required by Illinois Supreme Court Rule 552:
“The arresting officer shall complete the form or ticket and, within 48 hours after the arrest, shall transmit the portions entitled ‘Complaint’ and ‘Disposition Report’ . . . either in person or by mail, to the clerk of the circuit court of the county in which the violation occurred.”
The trial court dismissed the citation based partly on prior case law, and the appellate court affirmed.
The Illinois Supreme Court said, “Rule 552 clearly imposes an obligation requiring the arresting officer to transmit” the citation to the court “within 48 hours after the arrest.”
Yet, the Court reversed the lower court, finding that the rule was “directory” instead of mandatory. The Court did not focus on “shall.” Among other things, the Court focused on the absence from the rule’s text of consequences for the police’s failure to comply with the rule.
The Continuing Debate
Contract-drafting specialist Ken Adams prefers “shall” if used consistently and in a particular way. He thinks that the problem stems less from the word “shall” than from so many drafters’ misuse or inconsistent use of it (e.g., using it to signify a mandate in one part of a document but to signify something else in a different part)..
On the other side of the debate, Bryan Garner and others urge drafters to stop using “shall” in contracts and legislation. They find it ambiguous partly because it has been corrupted by drafters who misuse it or use it inconsistently.
Courts, too, have contributed to the ambiguity by not interpreting as mandatory some provisions containing “shall.” The Geilber case exemplifies a drafter and a court corrupting”shall”: the Court drafted Rule 552 and interpreted it as directory instead of mandatory.
Another argument is that “shall” is not “plain English,” which is what good drafters should aim for.
Possible (Partial) Solutions to the “Shall” Problem
Some experts suggest the use of “must” or “will” instead of “shall.” I’m not sure that using other terms would solve the problem.
Drafters who use “shall” inconsistently would likely use “must” and “will” inconsistently, thereby corrupting those terms.
Courts that have interpreted “shall” inconsistently would likely interpret “must” inconsistently. (The Geilber Court could have easily drawn the same conclusion if Rule 552 had contained “must” instead of “shall”).
For contract drafters, the solution is easy: state in the contract that the chosen term is, in fact, intended to convey a mandate.
For legislative drafters, the solution isn’t so easy. It would require a legislative body (that hasn’t already done so) to state somewhere in its collection of legislation that a certain term conveys a mandate.
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