Friday, September 18, 2015


Musings – tips (rough jottings)


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Lisa Marie Waugh just posted a comment in e-LEGAL
Using "Shall" and "Will"

STATUTE or RULE having a statutory force

Context or setting in which the word/terms is used
Intention- as to what is or was intended to convey- dic. meaning as defined in stand dic.- intention finds a mention
Commercial transaction - contract agreement- drafted by lawyer- may turn out to be one=sided, depending on who is the author- framing, drafting
Shall x may- may be, prima facie mandate x discretion
But discretion to 
Standards and rules - to mitigate ..
What Kapadia, CJ  had to say - for enactments . Equally so for contract agreements
Videotaped address
Discretion not unlimited
Court battle x arbitration
Mutual agreement
Dispute resolution mechanism- not again a fool proof one hence in turn given rise to a fresh spate of controversies, disputes and legal battle
Even if says shall, often diluted- rider saying unless had reasonable cause- but then what is 'reasonable of sufficient cause for non-cm0lkoiance is a matter of contro and dispute
my law net- new ideas in drafting a contract agreement – to muddle further
Dictionary meaning- auxiliary verbs
to be used ..
choosing a better or more appropriate , if not the best or most
NAP’S  on human..
May prove a fertile ground for breeding contro or ..
Lawyer , with an impartial frame of mind- duty bound to draft intelligently and with a multi-angled/dimensional vision
Cross refer- swamilook Blogs, TG website, etc

To illustrate:

‘shall do – pay by due date – pay by what mode- by chq or otherwise- better specify as being done to have credit by due

dues - if statutory to govt. - in a contract agreement of a commercial nature - even if govt..  better possible to make amply clear

if statutory, however, - treasury rules saying otherwise need to be looked into - 

Filings of tax return, appeal, so on

Discretion – its unintended repercussions-
refer TG- subjective hence judgmental view well nigh inevitable 

Tail Note:



INDIAN CORPORATE LAW: Agreements to Agree

(specimen @ Icl blogs)

Comment (reproduced):

Sporadic Reaction (jottings):

This instantly brings to one's mind a (contract) agreement, dubbed so but incomplete, in many respects. Such type can be said to be very commonly-come-across these days. Reference is those virtually one-sided agreements. In that, the terms and conditions, as drafted and incorporated, are heavily leaning to the side of the principal party being the, first named. For a glaring but often noted instance in real life, focus may be made to an “agreement to sell" executed by by a promoter in respect of sale of an 'apartment' (i.e. unit of a building – seen mushrooming in every place - village or town or city). No doubt, there are certain crucial clauses of stipulation e.g. known as ”‘Indemnity Clause” which are necessarily required to be included. For, without those clauses, any agreement of the referred type, even on the first blush, might have to be compulsively inferred to have been deliberately drafted , in a shamefully crafty manner, only with a view to defeating the purposes/interests of the second party. The most painfully irritating part of it all is the fact that , if and when confronted, the first named party invariably tries and seeks shelter by saying that the document has been drafted by his project consultant and /or law adviser, rolled into one,

Indisputably, no first named principal party, much less his professional law adviser, if qualified or duly equipped, can rightfully and lawfully claim, or defend self by making an averment to the effect that, any such agreement has to be considered as a ‘contract agreement’, within the framework of the law, That is, as one truly effective and purposeful, in law; More so, if due regard be had to, and is kept in full view, the governing law (INCLUDING ALL RELATED STATUTORYRULES AND REGULATIONS as are in force); such as the special enactment governing apartments, in force , in most of the states, If were to be accepted, is, for obvious reasons, bound to have the disastrous result of defeating the rights and interests vested by law in the other party ,being the second named; in the referred case, purchaser of the apartment.

(Anyone truly interested, having direct concern or otherwise, may care to go through the related Blogs on the topic of 'realty sector'/'apartment law'- @swamilook


Spl. Labels:

Drafting of law – 

(i.e. statutory enactments or rules having statutory force)

Drafting of Contract Agreements

Lawyers say:

"Will" is obligatory
"Shall" is mandatory
"may" is discretionary
Which is a cristal clear answer.
Interesting discussion! My post did not really take the legal meaning of shall into consideration. Its legal ramifications are a bit different than the old grammar rule in which shall is used normally in the first person future and to imply determination in second and third persons. And will is used in the opposite. Shall in legal terminology apparently implies legal obligation. I did not even think of this when writing the post, so thank you, attorneys!
Oohh. One of my favourites is"I shall be grateful if you will..."
9 hours ago
·  Arlene Miller
And they that French is difficult! Shall I say more?... ;)
8 hours ago
·  Arlene Miller
I think, used correctly "Shall" is directive given to a party subject to an obligation, "Will" is an acceptance of an obligation by the person subject to it.
8 hours ago
Report spamDr Beila Goldberg
The question was posted in the e-Legal group so it goes about Legalese.
Two words that you will find in any agreement or contract.
If you don't care about the difference it is your responsability in drafting it bu your client may have a lot of problems.
So please stick to Jairam Chandnani clear answer.

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