What do shall and may mean when used in legal documents?
Before we answer this question, let’s review the main uses of shall and may in general English.
When do we use the modal verb MAY? To express something that is possible: It may rain tomorrow. To ask for and give permission: May I open the window? You may sit down now.
When do we use the modal verb SHALL? To ask for instructions or decisions, to offer services, and to make suggestions: Shall I carry your luggage? What time shall we meet? Let’s go now, shall we? Remember that in general English shall is used only with the personal pronouns I and we. Its use with other persons is old-fashioned. To predict something or express a determination: I promise I shall take you to her party.
Now, these modal verbs usually have a different meaning in Legal English.
When do we use MAY in Legal English? To talk about what a person is permitted to do: The Company may assign this Agreement with prior written consent of the other party. Can you think of an example of your own?
When do we use SHALL in Legal English? To impose an obligation (obligatory or mandatory sense): The debtor shall be notified of any action taken by the bank. To establish a directive (directory sense): The answer to the complaint shall be filed within 15 days as from the date of its receipt by defendant. To refer to an entitlement: Defendant shall be reimbursed for any costs incurred during the course of this legal proceeding. To express future meaning: The Franchisor shall not engage in any activity related to the Franchised Business until 2 years shall have expired as from the date Franchisor terminates this Agreement at his or her option.
You’ll be given different sentences and you’ll have to decide on the different meanings of the modal verbs shall and may. 1) The parties acknowledge that they shall not commence any action until 2 years shall have expired since termination hereof. Future meaning Entitlement Mandatory sense Directory sense Permission 2) The Company shall be indemnified by Licensee from and against any liability, cost, damage, loss, or expense related in any way to the system licensed by the Company. 3) Franchisee shall, within 90 days of the date of execution of this Agreement, commence the Franchised Business in the Franchised Territory in accordance with the provisions of this Agreement. 4) Directors of the corporation shall not be liable to either the corporation or its shareholders for monetary damages for breach of fiduciary duties unless the breach involves acts or omissions not in good faith. 5) Assignor may terminate this Agreement upon written notice to Assignee.
Another exercise. Complete the gaps with the most appropriate modal verb may or shall. 1) At any regular meeting of the Board of Directors, one-third of the duly and qualified directors _______ constitute a quorum. shall may 2) This Agreement ______ be altered only by written agreement signed by the parties. 3) Books, audits, reports, and accounts _____ be kept by XYZ Inc. at all times so as to accurately reflect the business and financial condition of the corporation. 4) Directors ______ be paid such compensation, including fees, as shall be determined from time to time.
NOTE: In Legal English will, must and should are also used to express an obligation. For example, Borrower will/must/should make with each periodic payment a payment sufficient to provide a fund to pay taxes and other municipal charges.