Shall I or shall I not apply the ABC rule in my legal translations?

I recently stumbled across this interesting blog post that talks about, among other things, how shall is used in Australian contracts.

According to something called the ABC (Australian, British, Canadian) rule, “legal drafters cannot be trusted to use the word shall under any circumstances”, and shall shouldn’t be used in legal writing.

Although it looks like that advice has not been taken on board by everyone, or even by many, in Australia as apparently shall is still being used, albeit inconsistently, in Australian contracts. The post also points out that even when it’s not used, things are far from clear and consistent.

The ABC rule advocates using a more appropriate word in shall’s place. However, some might argue that shall is the most appropriate word for expressing obligation, if that’s what you’re using it for, and that trying to avoid it may lead to verb inconsistency and reader confusion.

The ABC rule surprised me. Not because of the “A” or the “C” bits (I’m from Australia but I don’t have too much experience with legal documents from there, and Canada is—and probably always will be—a mystery to me as far as everything goes), but because Britain was included as shall does seem to be pretty prevalent in English legal documents. Maybe it’s just that no-one pays much attention to the rule anywhere.

Anyway, the main thing I wanted to say here was how important it is to be aware of the conventions and the accepted practices in the legal writing of the particular jurisdiction you normally translate for. These conventions and practices will not always be settled, as in the case of shall, and you will often have a number of alternatives to choose from.

Sometimes it’s just a case of taking your pick for the sake of consistency, but on most occasions you will probably decide that one option is preferable to another, and both these types of decisions are worth compiling as a set of rules or in a style guide, which you can then follow and use to justify your decisions.

I do, for instance, use shall in legal contracts and documents. I wasn’t always sure of why and how I used it, but I’ve more or less got it straight now, but I’ll leave talking about that for another day.

Image courtesy of wbd.