Difference Between Will and Shall in Contracts

Will vs Shall in Contracts

It is very important to take note of the difference between will and shall in contracts, because they express different meanings or intentions. However, before looking at the legal field for the usage of will and shall, we can first see how they are generally used. The terms ‘Will’ and ‘Shall’ are two widely used grammar terms. Although their origins date back many centuries, today they are commonly used interchangeably. In fact, many people tend to substitute one term with the other leaving those attempting to spot the distinction between the two, confused. The term ‘Shall’ was traditionally used to refer to the compulsory performance of some duty or obligation. Indeed, conventional grammar books reveal that ‘Shall’, when used in the first person, refers to a future event or action of some sort. However, when used in the second or third person, for example “He Shall” or “You Shall,” it denotes the performance of a promise or obligation. ‘Will,’ on the other hand, represented the reverse, in that when used in the first person it conveyed the performance of a promise, and when used in the second or third person, it implied a future event. Legally too, the terms pose a certain problem. Drafters of contracts or other legal documents spend a good deal of time mulling over which term to use in a certain clause in order to express the desired meaning or intention. Despite modern practices that use the terms synonymously, it is best to be aware of the subtle yet traditional distinction between the two.

What does Shall mean in Contracts?

The term ‘Shall’, according to Black’s Law Dictionary, means ‘has a duty to’. This definition illustrates a compulsory aspect associated with the duty specified. Thus, it is mandatory on the person or legal entity performing the duty. In contracts, the word ‘Shall’ is traditionally used to convey a duty or obligation in relation to the performance of the contract. Keep in mind that contracts are generally written in the third person. Therefore, the use of the word ‘Shall’, particularly in the third person, connotes a sort of command, thereby rendering the performance of an obligation or duty imperative. Simply put, ‘Shall’, particularly in contracts or legal documents such as statutes, generally refers to some form of compulsory action or the prohibition of a certain action. Commentators on the use of the word ‘Shall’ in contracts advise that it is best to use ‘Shall’ when imposing an obligation or duty on a particular person or entity that is party to the contract.

What does Will mean in Contracts?

It is not uncommon to notice the word ‘Will’ used in contracts also to impose obligations or duties. Traditionally, this is incorrect. The term ‘Will’ has been defined as expressing willingness, strong desire, determination or choice to do something. As mentioned before, contracts are written in the third person and the use of the word ‘Will’ in the third person denotes a sense of futurity or rather it refers to some future action or event. It has been widely noted that the use of the word ‘Will’ in contracts should only imply some future action or event and should not be used to create obligations, although this is not a strict rule. Thus, many drafters of contracts, for ease and clarity, use the word ‘Will’ to express a future event and contrastingly use the word ‘Shall’ to impose an obligation.

Difference Between Will and Shall in Contracts

What is the difference between Will and Shall in Contracts?

• ‘Shall’ implies that a person has a duty or obligation to perform a certain action.

• ‘Will’ denotes a situation in which a person is willing, determined or has a strong desire to carry out a certain act.

• In contracts, ‘Shall’ is used to impose obligations or duties on the parties to the contract.

• ‘Will’, on the other hand, is used in contracts to refer to a future event or action. It does not impose an obligation or duty.

• The use of the term ‘Shall’ reflects the seriousness of the obligation or duty in that it is like a command, mandatory or imperative.


Images Courtesy: 

  1. Contract by Gunnar Wrobel (CC BY-SA 2.0)