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What is the implication of using shall versus will in writing a specification document?

For instance, lets say I have the paragraph, "upon by all parties involved."

All information between persons involved in this project will be kept confidential and limited distribution of information only to persons agreed upon by all parties involved.

Have I just exposed myself legally to allow a breach of confidentiality because I didn't use shall? What would use of shall/will in this paragraph imply?

Related, but does not fill my need: 'shall' and 'will'.

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Historically, shall referred to obligation while will referred to personal volition. Few speakers still make the distinction, but in legal terms it is usually upheld. 'He will do it' thus means that he wants to do it, whereas 'he shall do it' means that he is obliged to do it. –  user61979 Jan 31 at 17:52
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4 Answers

up vote 4 down vote accepted

RFC 2119 is the standard here. If something must happen, you need to use Shall. So although not necessary legally, but logically you have exposed yourself to a breach.

I am not a lawyer. This is not legal advice

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This has helped me by letting me figure out I can resolve my issue using less ambiguous terms such as "MUST" or "ARE REQUIRED" –  Incognito Sep 23 '10 at 19:55
    
Could you not also use To Obligate. "You are obligated to..." –  Arthor Oct 17 '13 at 16:09
    
According to RFC 2119, the terms should only be understood as necessarily being interpreted according to RFC 2119, if near the beginning of the document there is a piece of text stating that they should be interpreted according to RFC 2119 (or BCP 14 if you want to automatically absorb any updates). Some uses have stated that they are to be interpreted that way only if bold, capitalised, etc. –  Jon Hanna Jan 31 at 11:17
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Both "will" and "shall" are ambiguous, because they can denote prediction rather than obligation. Most legal writing experts now prefer the unambiguous "must", and I usually used that when I was a solicitor.

Here, for example, are the opening words from s.2 of the UK's Human Rights Act 1998: "A court or tribunal determining a question which has arisen in connection with a Convention right must take into account ..."

But someone signing a contract in which they said "I will do X" would be hard put to persuade a judge that they hadn't contracted to do X. The Law Society's "Standard Conditions of Sale" have been using "X is to do Y" since 1990.

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This is a late reply, but I happen to be looking into the difference between shall, will and must right now. What I find is the following, according to plain English:

  1. Will in a contract should reflect only the future tense (not create obligations to perform).
  2. Shall does not refer to the future. It can be paraphrased as "has the duty to" and refers only to capable subjects (meaning, Lessor, or Buyer shall do something, but not Property or Product shall).
  3. Must refers to the duty to perform of inanimate subjects (like the product or the property).

However, shall being the "most misued word in legal English", it is suggested to avoid using it altogether and to replace it with must, which is now being used for obligations of animate subjects as well.

This was useful: http://www.plainlanguage.gov/howto/wordsuggestions/shallmust.cfm and it quotes Bryan Garner so it's a good source.

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Forgive my late input, however - at least in Britain - the court would unlikely look too closely at the words used, instead more emphasis will be placed on the underlying "thrust" of the statement.

Both words you identify imply the same thing, that something will be done. there is little need to worry further about the semantics. It would be much more prudent to re-word the entire "term" so that the provision is expressly conveyed:

Any information relating to this project will remain confidential and will not be released to third parties without prior agreement.

or a variation thereof.

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Interesting, but as I'm not a lawyer, I'm sticking with MUST and ARE REQUIRED, which also adds to the trust. –  Incognito Nov 9 '10 at 14:21
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