Good morning! One of you asked me about the word “shall” and if it was an old word that we don’t use too much anymore. I thought about “shall” vs. “should,” and I ended up in a mole hole up to my eyeballs. Here is some basic information from Merriam-Webster (M-W), a less-than-great YouTube video, and an internet (Copilot) search.
Should
From M-W:
Used to express condition.
Example: Should (if) you change your mind about coming to dinner, please let us know.
From Copilot:
Used to express advice, recommendation, or a less strict obligation. It conveys a sense of probability or expectation, such as "You should study for the exam". [KC – You don’t have to study, but I strongly recommend that you do.]
Shall
Shall is the past tense of “should.”
M-W also provided an archaic definition: have to; must.
From Copilot:
Used to indicate a mandatory obligation or a strong intention. It is often found in formal or legal contexts, such as "You shall attend the meeting, or you will be demoted.” [KC – This, compared to “should,” isn’t just a suggestion. It’s a more polite way to say, “you will.” For example, mother said “Timmy, you
shall accompany your father to the doctor, and I don’t want to hear ‘no’ again!”
There is more out there about which word to use with I, we, you, them, and other pronouns, but I’m going to skip the grammar and explain what I learned about law and order. Well,
not so much order, but definitely the law. In the legal system, should and
shall have caused lots of problems, so I’ll give you the basics in case you ever find yourself trying to define the legalese of a contract. This is from
LegalClarity.
"Shall" and "should" carry very different weight in legal documents, and courts don’t always agree on what they mean. Here’s how to read them clearly.
“Shall” creates a binding legal obligation, while “should” signals a recommendation. That one-word difference can determine whether ignoring a contract clause or statute exposes you to a lawsuit,
a penalty, or nothing at all.
When a statute or contract says a party “shall” do something, the default interpretation is that the action is mandatory. Courts ordinarily treat “shall” as creating a non-discretionary duty,
particularly when the same document also uses “may” for other provisions. If a lease says “the tenant shall maintain renter’s insurance throughout the lease term,” that tenant has a binding obligation, not a suggestion to consider.
“Should” carries a fundamentally different weight. Where “shall” imposes a duty, “should” recommends a course of action. A contract clause stating “the parties should attempt mediation before
filing suit” is encouraging mediation, not requiring it. Skipping that step won’t constitute a breach.
Failing to follow a “should” provision generally doesn’t expose you to penalties, contract termination, or statutory liability.
Maybe I need my own legal statement here? I do not guarantee the veracity of sites or language that is not my
own. How’s that? A cute puppy might help.
Kara Church
| Technical Editor, Advisory | KE – Documentation
Pronouns: she/her | Call via Teams | jackhenry.com
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