A thread popped up on the Honyaku mailing list today regarding the use of “will” and “shall” in legal documents. I took the rare (for me) step of responding. Since we have many translators in the audience, I’m cross-posting my response here, with a few edits to consolidate another comment in the same thread.
Law is a conservative field, and legal drafting is generally adverse to change, despite whatever trends may be popping up among certain forward-thinking lawyers. “Shall” is still the most common way to set up an obligation in a contract, and is probably the least controversial way to translate a phrase like ～しなければならない or ～するものとする when used for that purpose. There is nothing wrong with using “will” or “must” for this purpose, but it is not really the standard usage.
On which is “better”: It really depends on the subject matter and specific usage in question. I mostly work with institutional financial transactions, where the contracts are all drafted by a handful of large law firms from Word templates, look more or less the same, and they generally use “shall” to set up obligatory commitments. In this context, it would almost be stupid not to say “shall” since that is what everybody expects to see. A consumer contract, on the other hand, might need different language, since a reasonable non-professional may not understand the meaning of “shall” in a particular context.
However, I would never use “shall” for more than one purpose in one contract—that seems to be asking for trouble.
That said, please use consistently different translations for different terms in the original document. For instance, I usually translate ～しなければならない as “must” and ～するものとする as “shall,” regardless of the apparent intent behind the terms.
I say this because there can be hair-splitting in the interpretation of a contract based on inconsistent usage of words like “will” and “shall.” For instance, if the contract usually uses “shall” to create obligations, but inconsistently uses “shall” elsewhere to state a condition or a representation of fact, that inconsistent usage may be relevant in arguing about the contract later. The party reading the translation may want to note that inconsistency or dispute it with their counterparties, but they cannot tell that there is an inconsistency unless that inconsistency is reflected in the translation with similarly inconsistent language.
The same applies to tense. Past tense, present tense and future tense may add nuances to the contract that lawyers will argue about later. If a sentence otherwise sounds like an obligation but is stated in the past or present tense, it may be interpreted as a representation or warranty, which makes a huge difference. (An obligation binds the parties to do something, whereas a representation/warranty is a statement of fact which the parties rely on—the other parties can claim damages from whoever “said” the statement if the statement is incorrect.)
Sadly, there are many contract drafters (both lawyers and non-lawyers, both Japanese and non-Japanese) who fill their contracts with incomplete, inconsistent or illogical terms. As the translator, you should not cover these up—you have to read these documents word-for-word and directly translate any incompleteness, inconsistency or illogicality in the original. Otherwise you are likely hurting your client by concealing the bad drafting of the underlying document.
Deloitte Touche Tohmatsu has a good online glossary of Japanese contract terminology if you want to learn more about the nuances of different terms. Unfortunately, I haven’t come across any similarly straightforward English-language resources. One good “dead tree” book on English contract terminology is “Drafting and Analyzing Contracts” by Scott Burnham (ISBN 0820557889), but it is aimed more at lawyers and law students who want to write contracts, not so much at translators and analysts.
Question: Do you think it would be a good idea to suggest that clients include a definition in English translations of contracts to make it clear that “shall” means “has a duty to” and consistently use “shall” only in that sense?
This is not legal advice for any particular situation, but only a general observation: I see efforts like this in professionally-drafted contracts from time to time, most often when written by lawyers from the Commonwealth countries. To use a tired metaphor, it is a double-edged sword. If you explicitly define “shall” to mean something in particular, it’s much harder to argue that “shall” means anything else, so you have to be especially careful to avoid any other usage of “shall.” If you don’t define “shall,” then you can use the context of the word to argue your way out of any inconsistent usage, by claiming that it was never explicitly limited to any particular meaning.
Perhaps this discussion illustrates the value of getting a lawyer involved in drafting! But in any event, I hope it illustrates the value of keeping original terminology distinctions intact as much as possible.