“Shall” and “will” in legal requirements

Question

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'.

Answer 1

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

Answer 2

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.

Answer 3

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.