by
Roderick Ramage, solicitor, www.law-office.co.uk
first published
in New Law Journal (newlaw.journal@butterworths.co.uk) on 30 April 1970
DISCLAIMER
This article is not advice
to any person and may not be taken as a definitive statement of the law in
general or in any particular case. The author does not accept any
responsibility for anything that any person does or does not do as a result of
reading it.
A testator left
his residuary estate to his children in equal shares, with a proviso that
"in case any child of mine shall die in my lifetime leaving issue
living at my death, such issue shall stand in the place of such deceased
child ... ". At the time when the will was made, one of the testator's
children had died leaving a daughter living at the time of the testator's
death. The granddaughter took out a summons to determine whether she was
entitled to share in the residuary estate. It was held by the Court of Appeal (Re
Walker [1930] All ER Rep 392) that she was not entitled to share in it.
Lord Hanworth MR said, at p393:
"It is plain that the words 'any child of mine shall die' have a plain
meaning. In using the words 'shall die' the testator is using words of
futurity". Futurity in this context, as shown later in this article, means
futurity as at the date of the will. Similar facts and words of a will have
been considered in other cases, in some of which similar and in others contrary
conclusions have been reached. The distinction drawn between the two lines of
cases is fine if not artificial.
In Rayfield v Hands [1958] 2 All ER 194, in a
different field of law, the articles of association of a limited company stated
(inter alia) that "every member who intends to transfer shares shall
inform the directors who will take the said shares equally between
them at a fair value ... ". A member having given notice to the directors
in accordance with the relevant article, and the directors having been
unwilling to take the shares, the member took proceedings against the directors
and sought an order that they purchase his share at their fair value. The
directors contended that they were not obliged to take the shares, and it was
argued on their behalf that, although the word "shall" where it
appeared connoted obligation, the use of the word "will" later in the
article indicated that the directors were not under any obligation to purchase
the shares but imported the idea of option or choice. Vaisey J said at p l96: "I appreciate the force of that argument, but I
cannot accept it. In this context, while the word 'shall' clearly imports
compulsion and obligation, the word 'will' indicates
as it seems to me a resultant prospective eventuality, in which case the member
has to sell his shares and the directors have to buy them, each being under an
obligation to bring that eventuality into effect".
The meaning of
the word "will" as an auxiliary verb has been considered further by
the court in the case of Hector SS Co v Soufract
VO (Moscow) [1945] KB 343, in which the following clause in the charterparty
was construed: "Should steamer be ordered on a journey by which the
charter period will be exceeded charterers to have use of the steamer to
enable them to complete the voyage ... .". At p 348, Atkin J said that
what was being dealt with was clearly the ordering of a voyage which would ex
necessitate, not which might exceed the charter period and it was not
material whether or not the word "will" meant "shall". Had
the parties meant otherwise, the clause could have read: "Should steamer
be ordered on a voyage which in fact, or in the results, exceeds the charter
period".
In Ledingham and Others v. Bermejo Estancia Co Ltd
[1947] 1 All ER 749, a clause was construed whereby interest was waived
"until such time as the company is in a position to pay". It was
argued that the word "is" was to be read to indicate the present, at
the time of making the agreement, but it was held, per Atkinson J at p751, that even if the company were at the time of the
waiver able to pay the interest out of capital, this was clearly not intended,
because the purpose of the waiver was to enable the company to carry on
business, and so it was the intention that what was meant was not present
payment but future payment out of income.
These cases drawn
from varied fields all illustrate that difficulties m the construction of legal
documents can arise solely on account of the choice of the auxiliary verbs
used. Particular difficulties are found in the words "will" and
"shall" in legal as well as in everyday English. Whilst a very wide range
of meaning can be ascribed to them, and usage varies according to the time and
place and the practice of the user, there are broad principles generally
accepted in everyday English to distinguish the words "will" and
"shall".
The general rule
is that in the English spoken in England, the future is expressed in the first
person by the use of the word "shall", and in the second and third
persons by the word "will". Contrariwise the word "will",
when used in the first person, and the word "shall", when used in the
second and third persons, connotes intention or compulsion. This can be
illustrated by the Scottish use of these two words, which gives to them the
opposite meanings from those given to them by English usage. The story is told
of a Scot who fell accidentally into the Thames and, fearing that he would
drown, shouted: "Help! I will drown. No one shall save
me". A passing Englishman heard these words and, concluding that the Scot
intended to drown and did not wish to be saved, walked away and left him to
drown. The purpose of this article is to show that the generally accepted
English usage of the words is applicable to legal as well as to everyday
language and that legal documents can be drafted with greater precision and
clarity than at present if this usage is adopted.
The following
typical clause in a lease, taken from form 2: 64 in volume 11 of the 4th
edition of the Encyclopaedia of Forms and Precedents, embodies these two words
using them in the manner commonly but wrongly used by lawyers: "If the
tenant shall desire to determine the term hereby granted and shall
give to the landlord six months, previous notice in writing ... and shall
up to the date of such determination pay the rent ... then immediately
on the expiration of such notice the present demise ... shall cease and be
void ... ".
Before
considering the use of the words, the structure of the clause itself must be
analysed. There are generally three parts in the basic structure of a legal
clause such as the above, namely:
In this lease
clause the word "shall" is used four times in all, but only once in
the imperative sense. In stating the case and the two conditions, the word is
used, apparently to put them into the future tense in the belief that a matter
expressed in the present or past tenses can relate only to matters concurrent
with or previous to the document referring to them. This is mistaken because a
document is construed to relate to matters concurrent with or previous to the
relevant circumstances when they occur, and not to those applicable at the date
of the document, unless a different intention is clear from the document
itself.
Even if it were
proper to use the future tense, the word "shall" would be
inappropriate because it connotes an obligation; the word "will"
ought to have been used and, if in the example the word "will" is
substituted in the case and the conditions for the word "shall", it
becomes apparent that the use of the future tense is not only unnecessary but
also confusing.
This use of the
word "shall" in statements of the case and condition was formerly
common not only in private legal documents between parties but also in Acts of
Parliament, but in the latter the practice has been established to limit the
use of "shall" to expressions of obligation only. The case and
condition should be, and in Acts of Parliament always are, expressed m the
present tense, when stating facts required to be concurrent with the legal
action and in the perfect tense when stating facts required to have preceded
it. In On Legislative Expression (House of Commons Papers (1843) vol xx)
George Coode states the advantage of this rule saying that "keeping the
description of cases and conditions in the present and perfect tenses [it]
leaves the imperative and potential language of the legal action clearly
distinguished ... Narration will appear in narrative language instead of being
allowed, as now, to usurp imperious language, and thus confound the facts and
the law". The statement of the legal action may be either mandatory, when
"shall" is used, or permissive, when "may" is usually
appropriate.
For example: in sl09(1) of the Companies Act 1948 the case and the legal
action are both contained in the opening paragraph, whilst the conditions are
set out in the following sub-paragraphs. The case is in the perfect tense, as
are the first, second and last of the four conditions, since they are all
required to have preceded the legal action, but the third condition is in the
present tense, since it must continue up to the time of the legal action, thus:
[case]
" 109.—(1) Where a company ... has issued a prospectus ... [legal
action] the company shall not commence any business ... unless [conditions]
(a) shares ... have been allotted to an amount not less ... than the
minimum subscription; and (b) every director of the company has paid to
the company ... a proportion ... ; and (c) no money is ... liable to be repaid to
applicants ... ; and (d) there has been delivered to the registrar of companies
... a statutory declaration ... " Space does not permit a restatement of
this extract in the language typically used by the draftsman of private legal
documents where "shall" and "shall have", etc, are
substituted for the present and past perfect tenses; but the reader is invited
to recast for himself the extract on this basis and to compare the confused end
complicated language which results with the clarity and precision of the
enactment itself.
The previous
example of a typical clause from a lease can be used to illustrate the
application of this principle to private legal documents. In it, the case and
the second of the two conditions are to continue up to the time of legal
action, whilst the first condition (relating to the giving of such notice) is
in the past in relation to the legal action. Rewritten in this manner the
clause now reads: "If the tenant desires to determine the term
hereby granted and has given to the landlord six months' previous notice
in writing ... and up to the date of such determination pays the rent
... then immediately on the expiration of such notice the present demise ... shall
cease and be void ... "
Now the operative
part of the clause is clearly distinguished by its language from the other
parts, and the whole is more simply and clearly expressed.
One other error
frequently made but not in the example used in this article is to follow the
use of shall in the case and condition with "will" in the legal
action, eg, " ... the demise will cease and be void ... ".
Whilst this use of "will" may serve to distinguish the operative from
the narrative parts of the clause, it is nevertheless a misuse of the word,
because will connotes simple futurity, whereas the usual purpose of such
clauses is not to forecast the future, but to express future obligation or
discretion for which only words of compulsion or permission are appropriate.
The use of the
permissive form "may", instead of "shall", in private legal
documents is illustrated by the contrast between the two types of legal action
contained in this example: "If the tenant fails to comply with his
covenant to [repair] the Landlord may serve notice on the tenant ... and if the
tenant fails ... to comply with such notice the tenancy shall
determine ".
Applying the
principles discussed above to wills, in contrast to documents made inter vivos,
one may take the phrase taken from Re Walker with which this article
opened, in which the words "shall die" form part of the case and
"shall stand" part of the legal action. The simple fact that wills
take effect on death means that for most purposes, including this example,
cases and conditions must necessarily precede the legal action and therefore,
according to the principles discussed above, ought to be expressed in the past
tense. Thus the example could be rewritten: "In case any child of mine has
died in my lifetime leaving issue living at my death such issue shall
stand in the place of such deceased child ... ".
If the rule given
in Re Walker is correct, then the effect of this clause might be that
the issue of children who had died before the date of the will would take their
deceased parent's share, but the issue of children who died after the date of
the will, but before the death of the testator, would not share. This would not
be a sensible conclusion to draw although on the most recent, as well as on
older authorities it could represent a correct statement of the law.
In Re Donald,
Royal Exchange Assurance v Donald [1947] 1 All ER 764, it was held that the
court could construe ambiguous phrases in accordance with the context of the
will, and so the phrase "who shall have died in the lifetime of J."
could be read as "who shall not be living at the death of J", so
enabling the issue of a nephew, who had died six months before the birth of J,
to share in the estate. At p.766, Lord Greene MR
said: "Quite apart from and beyond the ordinary rule that ambiguous
phrases must be construed in accordance with the context, I find that the court
has been ready to discover that testators have fallen into a trap which it is
quite easy to fall into, of using tenses ungrammatically and making references
to time inaccurately". Whilst this case may be of considerable value, it
is not sufficient in the light of previous authorities to allay the doubts that
a testator or his draftsman might have in using language which, although
unambiguous in everyday English usage, in Acts of Parliament and in private
legal documents, might be misconstrued in a will. For this reason, where wills
are concerned, whilst the principles advocated in this article may be adopted,
any question of doubt as to the time from which the will is to speak should be
made clear expressly, and not by implication: eg, in the example taken from Re
Walker (supra) after the words "has died in my lifetime" could be
added "whether before or after the date of this will".
The conclusion to
be drawn is that the draftsmen of private legal documents are perpetuating a
major cause of difficulty and confusion by adhering to an incorrect use of the
word "shall" in cases and conditions, and thereby ignoring precepts
of draftsmanship compounded over a century ago, adopted in the drafting of Acts
of Parliament and set out more recently by EL Piesse and J Gilchrist Smith in The
Elements of Drafting, of which a third edition was published in 1965.
copyright
Roderick Ramage
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