Shall We Dance? Step Along With Modal Verbs

| 0 comments

Photo Credit: Pixabay

Photo Credit: Pixabay

Amanda Morris

Consistency is key; it’s called the Golden Rule of contract drafting for a reason. Writers, drafters and translators alike do their best to keep a pattern when it comes to word choice in technical texts. This is why, like every other professional translator I’ve ever met, I am very devoted to glossaries and terminology databases. They are some of the tools we use to assure quality, precision and readability.

Okay, we’ve heard this before. Repeatedly. But it’s not always that simple, because, after all, we work with writing, not math. We (and the writers we’re translating) use synonyms, homonyms, figures of speech and what not. Furthermore, often enough each word has more than one meaning. Of course, context is our friend and we usually figure it out. But not always, especially when a word is in constant, yet inconsistent, use.

One of the most troublesome issues legal drafters and, consequently, translators face is the inconsistent use of modal verbs. It’s tricky, but I hope this piece, along with your own instincts, experience and knowledge, will help.

 

  1. Auxiliary Modal Verbs

There’s no need to go into details here, as the focus is not grammar, but, specifically, modal verbs in legal translation. However, a brief introduction to modal verbs will set the framework.

Modals are auxiliary verbs, that is, they can’t stand alone: they exist to give additional meaning to principal verbs, helping to set the voice, tense and mood. Together, principal and modal verbs form verb phrases, such as “could be” or “may have.”

 

  1. Modal Verbs and Legal Drafting

The most commonly used modal verbs in legal drafting are shall, must, may and should, including their negative forms (+ not). These words establish duties, rights, prohibitions and entitlements and are also known as “words of authority” (Garner’s Dictionary of Legal Usage, 952).

“May” is an option; “should,” a recommendation; “can,” an authorization. “Shall” and “must” will be discussed ahead in detail.

Remember that, although “must” and “may” have opposite meanings, “must not” and “may not” are almost synonyms.

 

  1. Inconsistencies in the Use of “Shall,” With Possible Solutions

The main problem with the use of “shall” in legal documents is that it has several different possible meanings, and all are still in use. According to the American Rule (which we will discuss further along), it should always mean an imposition of duty on a specific party, as in “the lessee shall pay.”

But it can also impose a general, nonspecific duty; give permission; establish a conditional duty that depends on voluntary action; act as a future-tense modal verb; express an entitlement; and make a suggestion or even a promise.

Indeed, the use of modal verbs, especially “shall,” can be so fraught with mistakes that some legal drafters prefer to avoid them altogether, choosing “the parties are required to” instead of “the parties shall,” or “the parties are free to” instead of “the parties may.” If it is possible to use these alternatives without any loss of meaning, they are good options.

Most legal writers, however, understand that, while modal verbs might sometimes be expendable in sentences, this is not always the case. There are two main theories of usage, each named after its country of origin: the American Rule and the ABC Rule (Australian, British and Canadian).

 

  • The American Rule

The American Rule states that “shall” always means, “has a duty to.” This rule may be a good idea, but its advocates are possibly too optimistic, since they believe that it is enough to impose the consistent use of the word through a mere guideline. As we have seen, it is not always so.

Actually, the first time I heard the verb “shall,” as far as I can remember, was in Disney’s “Cinderella”: “You shall go to the ball,” said the fairy godmother. It’s very clear that our heroine wasn’t forced to go to the ball. It wasn’t her duty; it wasn’t an order. She was finally free and she could go. If we follow the American Rule, however, this saccharine, sanitized version of the fairy tale turns as dark as Hans Christian Andersen’s “The Red Shoes,” in which the selfish protagonist is forced to dance and never stop. Going along with the metaphor of bibbidy-bobbidy-boo, we have transformed an invitation into a command: remove those pretty glass shoes, put on the red ones, and start dancing until you beg to have your feet chopped off. In the real world, no extremities will be severed because of the misuse of the verb “shall” in legal documents, but it will have consequences, including possible litigation.

So, as we can see, there is an inherent difficulty in equating “shall” with only one specific meaning. In both legal and everyday contexts, it is often used in several different ways, so it’s not particularly recommended or safe. However, if you (or your client) insist on the American Rule, be consistent, and all should go well; remember that, as a translator, the accuracy of the source text is not your responsibility.

Here are Bryan Garner’s guidelines for the meaning of each modal verb under the American Rule (Garner’s Dictionary of Legal Usage, 954):

shall
has a duty to

must
is required to [used for all requirements that are not duties imposed on the subject of the clause]

may not
is not permitted to; is disallowed from

must not
is required not to; is disallowed from; is not permitted to

may
has discretion to; is permitted to

is entitled to
has a right to

will
(expresses a future contingency)

should
(denotes a directory provision)”

 

  • The ABC Rule

The ABC Rule gets its name because it became popular among Australian, British and Canadian legal drafters in the 1980s. It is a more reasonable approach, allowing for the human factor, namely, that people will not use the term consistently, as it has too many meanings, so it’s best to just not use the verb “shall” at all. Bryan Garner, a fantastic writer on legal drafting and widely quoted in this piece, adopts this rule, and so do I.

One word of advice, though: the alternative to “shall,” in this case, is “must.” But many American drafters believe that “must” has an unpleasant, imperious connotation that only fits in statutes, regulations, laws or adhesion contracts, and avoid its use in contracts. After all, contracts are, by nature, an agreement and not an imposition.

That said, the ABC rule states that “must” is unequivocal. It might be perceived as harsh, but it’s simply uncompromising, as well it should be, since it is supposed to impose a duty, whether in a contract or any other sort of legal document.

Incidentally, don’t assume that these rules are confined to certain regions of the world. Despite its name and origin, American legal drafters have been adopting the ABC Rule more and more often these days (Garner’s Dictionary of Legal Usage, 955).

Here are Garner’s guidelines for the use of modal verbs according to the ABC Rule:

must
is required to

must not
is required not to; is disallowed from; is not permitted to

may
has discretion to; is permitted to

may not
is not permitted to; is disallowed from

is entitled to
has a right to

will
[one of the following:] a.(expresses a future contingency) b.(in an adhesion contract, expresses one’s own client’s obligations) c.(where the relationship is more or less between equals, expresses both parties’ obligations)

should
(denotes a directory provision)”

 

  1. Suggestions for Translators
  • Translating into English ― unless your clients insist (and in some cases they might, if it’s the custom in their law firms or agencies)―follow the ABC Rule and avoid “shall.” If you want to convey a duty, use “must.” If possible, eschew modal verbs altogether.
  • Translating from Englishask your client if they follow a specific rule. Otherwise, acknowledge that, most likely, modal verbs will be in the document and will have been used inconsistently. Trust your knowledge and instincts, and translate according to context.

 

Good luck!

 


References

  • GARNER, Bryan A. 2011. Garner’s Dictionary of Legal Usage. Oxford: Oxford University Press.
  • GARNER, Bryan A. 2008. Garner on Language and Writing. Chicago: National Book Network. Kindle Edition.

Websites

(accessed in August, 2015)

For a defense of the use of “shall,” see:

Leave a Reply

Required fields are marked *.



× eight = 32