Legal Definition and Related Resources of Shall

Ordinarily where a statute uses the word shall its provision is imperative . Escoe v Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L. Ed. 1566. But if such an imperative interpretation leads to inconsistencies with the expressed intention or declared purpose of the act, it is then interpreted as permissive. See West Wisconsin R. Co. v Foley, 94 U.S. 100, 24 L.Ed. 71. The term may also be interpreted as merely directory in a statute which involves the prospective action of government officials and is intended to guide such officials for the protection of the government rather than the granting of rights to private citizens affected by the statute. See Triangle Candy Co. v United States , (C.A.9. Cal.) 144 F.2d 195.

British Cases. Great care is to be employed in using or construing this word. Its various meanings range under two general classes according as it is used, as implying futurity; or as implying a mandate, or giving permission or direction. Futurity. If something Is agreed to be done if or when something else “shall” happen, this contemplates futurity. Past occurrences will not satisfy the condition precedent. 3 Drew. 617; 25 L. J. Ch. 850; 27 L. T. O. S. 289; 29 L. J. Ch. 911; 7 W. E. 135; 5 Jur. N. S. 56. “Shall be born,” in the absence of a context, are words of futurity; and, in a will, mean persons born after its date. 50 L. J. P. C. 45; 6 App. Ca. 471. The phrase, in a divesting clause, if donee of property “shall become bankrupt” seems “to mean, simply being bankrupt,” 29 L. J. Ch. 843; and it is immaterial whether the bankruptcy has happened before, or shall have happened after, the making of the instrument. 1 D. G. & S. 282; 16 L. J. Ch. 245. So, too, in an independent testamentary gift to issue of a deceased member of a class, the words “shall die” or “shall happen to die” do not necessarily point to a future death, so as inevitably to exclude the issue of a member of the class who may have died before the date of the will. 30 L, J. Ch. 789; 1 Dr. & Sm. 497; 1 Mer. 320; 2 Jarm. 771. So “a surrender to such uses as the testator ‘shall’ by will appoint, applied to a will antecedently executed, it being considered that the surrender referred to that Vill which should be in existence at testator’s death.” 1 Jarm. 58; 1 T. R. 435n. See May. Whether Mandatory op Directory, In its ordinary signification, “shall” is mandatory and not permissive. It is to be so construed unless by the context it appears that a different meaning was intended or when it is necessary to effectuate the chief purpose of the statute. 122 N. E. 268 (Mass.); 217 Mass. 430; 106 N. E. 618.
“Shall” and “May.” “Shall” and “May” are often held to be convertible terms in ascertaining legislative Intention, 108 HI. App. 614, 616; 77 111. 271; 184 111. 597. As where, in a statute, no right or benefit to anyone depends upon its imperative use it may be held to be directory. 249 111. 294. The word has not, often been construed as “may,” and as importing only power or authority. 153 Mass. 200. Mandatory. Whenever a statute declares that a thing “shall” be done, the natural and proper meaning is that a peremptory mandate is enjoined. But where the thing has reference to the time or formality of completing any public act, not being a step in a litigation, or accusation; or, of creating an executed contract whereof the benefit has been, or but for the act of the beneficiary might be, received, the enactment will generally be regarded as merely directory, unless there be words making the thing done void if not done in accordance with the prescribed requirements.
The word “shall” has been held mandatory as regards time for appeals from justice’s courts, 4 C. B. N. S. 264; 27 L. J. C. P. 224; 29 L. J. M. C. 108; 31 L. J. M. C. 92; except when the appeal is hindered by the offices of the court being closed, L. E. 2 Q. B. 410; 9 B. & S. 27, note; or by respondent not being found, 27 L. J. M. C. 273; E. B. & E. 469. As regards time for appeal from county court, 27 L. J. Q. B. 319; 51 L. J. Q. B. 110. As regards application for special case, 19 Q. B. D. 168; 56 L. J. M. C. 122; 57 L. T. 368; 21 Q. B. D. 188; 36 W. K. 800. As regards requirements for creating mortgage of a ship, 29 L. J. Ch. 827. As regards contracts being under seal, 27 L. J. C. P. 314; 51 L. J. Q. B. 292; 16 Q. B. D. 446. As regards provisions for arbitration, 57 L. J. Q. B. 181; 36 W. R. 468; 2 L. J. Ex. 150. As regards sealing and signing by directors of contracts by railway and dock companies, 18 L. J. Ex. 345; 5 Ex. 442; 21 L. J. Ex. 117. As regards building contracts, 18 L. J. Ex. 282. Directory. In the following cases the word “shall” was sustained as being directory merely as regards the time fixed for the appointment of overseers. 2 Stra. 1123; 10 L. J. M. C. 166; 9 Dowl. 1001; and as regards the time for the election of guardians for the Borough of Norwich, 1 B. & Ad. 310; for appointment of surveyors of highways, 4 East 142; for holding quarter sessions, 5 L. J. O; S. M. C. 95; 7 B. & C. 6.
As regards the transmission of a conviction by justices to the next quarter sessions. 13 Q. B. 216; 18 L. J. M. C. 78. As regards the time and manner of making out the lists of persons entitled to vote, or the time when the lists of voters are to be signed and delivered to the sheriff or returning officer. 25 L. J. C. P. 141; 17 C. B. 334; 30 L. J. C. P. 33; 9 C. B. N. S. 1; 55 L. J. Q. B. 12; 16 Q. B. D, 244; 54 L. T. .183; 60 J. P. 631. As regards stamping the official mark on the back of a ballot paper. 55 L. J. Q. B. 273; 16 Q. B. D. 739; 54 L. T. 651; 34 W. R. 609; 50 J. P. 519. As regards consent of father to the marriage of a minor. 8 B. & C. 29; 6 L. J. O. S. M. C. 67; 2 M. & R. 230. As regards the questions to be asked a recruit. 16 Q. B. 48; 20 L. J. Q. B. 73. As regards the particulars to be stated in a ‘doctor’s certificate for the detention of a lunatic. 16 L. J. M. C. 18; 9 Q. B. 651. As regards the formalities prior to a sale by a bankruptcy assignee. .2 L. J. Ex, 179; 1 Cr. & M. 450; 3 Tyr. 339. As regards the provisions in a private act as to the mode of keeping the register of proprietors in an incorporated company. 1 M. & G. 448; 2 lb. 606. As regards the countersigning, by secretary, of a bill or note of a joint-stock company. 9 C. B. 574; 19 L. J. C. P. 305; 1 H. & N. 165; 25 L. J. Ex. 348.

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Shall in Historical Law

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Mentioned in these terms

Adeem, Adjusted Taxable Income, Affidavit Of Service, Appointment, Power Of, Average, , Bailment, , Cannabis, Capacity, Co-insurance, Collateral Source Rule, Collective Bargaining, Contract, Damaged, , Decree Nisi, Deposit, Detinue, Devise, Double Jeopardy, Dumb Bidding, Electric Utility Company, Eminent Domain, Employer, Equal Protection Of The Laws, Fair Trade Acts, Free Ships, , Security For Good Behavior, Include, Indirect Tax, Indorsement, Inspection Laws, Issue, Jason Clause, Jeofaile, Judicial Power, Marshaling, , Mittimus, Precatory Trust, Presumption Of Advancement, Presumption Of Innocence, Presumption Of Survivorship, Preventive Justice, Raffle, Receiver, Reconciliation, Registration, Regulate, , Sale Of Goods, Sample, Shop Book Rule, Should, Stake, Surety, Surrender, Tacking, Tenancy At Will, Trust.

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This definition of Shall is based on the The Cyclopedic Law Dictionary . This entry needs to be proofread.

Vocabularies (Semantic Web Information)

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Legal Usage of Shall in English

An European Commission document offers the following explanation about the misused of Shall:In the third person (he/she/it/they), ‘shall’ should only be used if you are writing legislation or contracts or are quoting directly from them (in inverted commas). It should never be used when paraphrasing legislation or quoting it indirectly.

Examples ‘The seven members of the board are selected from among experts possessing outstanding competence in the field of statistics. They perform their duties in their personal capacity and shall act independently149.’ ‘Competent authority : The central authority of a Member State competent for the organisation of official controls (sic) in the field of organic production, or any other authority to which that competence has been conferred. It shall also include, where appropriate, the corresponding authority of a third country (sic)150.’

Alternatives

must, should, is/are, is to/are to, can, may (as appropriate).

Resources

Further Reading

• David Mellinkoff, “Mellinkoff’s Dictionary of American Legal Usage”, West Publishing Company, 1992
• Bryan A. Garner, “A Dictionary of Modern Legal Usage”, West Publishing Company, 1995