{"id":44,"date":"2015-08-26T01:58:18","date_gmt":"2015-08-26T01:58:18","guid":{"rendered":"https:\/\/www.ata-divisions.org\/PLD\/?p=44"},"modified":"2017-08-05T01:47:36","modified_gmt":"2017-08-05T01:47:36","slug":"shall-we-dance-step-along-with-modal-verbs","status":"publish","type":"post","link":"https:\/\/www.ata-divisions.org\/PLD\/2015\/08\/26\/shall-we-dance-step-along-with-modal-verbs\/","title":{"rendered":"Shall We Dance? Step Along With Modal Verbs"},"content":{"rendered":"

Amanda Morris \u2013<\/strong><\/em><\/p>\n

Consistency is key; it\u2019s called the Golden Rule of contract drafting for a reason. Writers, drafters and translators alike do their best to keep a pattern when it comes to word choice in technical texts. This is why, like every other professional translator I\u2019ve ever met, I am very devoted to glossaries and terminology databases. They are some of the tools we use to assure quality, precision and readability.<\/p>\n

Okay, we\u2019ve heard this before. Repeatedly. But it\u2019s not always that simple, because, after all, we work with writing, not math. We (and the writers we\u2019re translating) use synonyms, homonyms, figures of speech and what not. Furthermore, often enough each word has more than one meaning. Of course, context is our friend and we usually figure it out. But not always, especially when a word is in constant, yet inconsistent, use.<\/p>\n

One of the most troublesome issues legal drafters and, consequently, translators face is the inconsistent use of modal verbs. It\u2019s tricky, but I hope this piece, along with your own instincts, experience and knowledge, will help.<\/p>\n

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  1. Auxiliary Modal Verbs<\/strong><\/li>\n<\/ol>\n

    There\u2019s no need to go into details here, as the focus is not grammar, but, specifically, modal verbs in legal translation. However, a brief introduction to modal verbs will set the framework.<\/p>\n

    Modals are auxiliary verbs, that is, they can\u2019t stand alone: they exist to give additional meaning to principal verbs, helping to set the voice, tense and mood. Together, principal and modal verbs form verb phrases, such as \u201ccould be\u201d or \u201cmay have.\u201d<\/p>\n

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    1. Modal Verbs and Legal Drafting<\/strong><\/li>\n<\/ol>\n

      The most commonly used modal verbs in legal drafting are\u00a0shall, must, may<\/i>\u00a0and\u00a0should<\/i>, including their negative forms (+ not). These words establish duties, rights, prohibitions and entitlements and are also known as \u201cwords of authority\u201d (Garner\u2019s Dictionary of Legal Usage<\/i>, 952).<\/p>\n

      \u201cMay\u201d is an option; \u201cshould,\u201d a recommendation; \u201ccan,\u201d an authorization. \u201cShall\u201d and \u201cmust\u201d will be discussed ahead in detail.<\/p>\n

      Remember that, although \u201cmust\u201d and \u201cmay\u201d have opposite meanings, \u201cmust not\u201d and \u201cmay not\u201d are almost synonyms.<\/p>\n

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      1. Inconsistencies in the Use of \u201cShall,\u201d With Possible Solutions<\/strong><\/li>\n<\/ol>\n

        The main problem with the use of \u201cshall\u201d in legal documents is that it has several different possible meanings, and all are still in use. According to the American Rule (which we will discuss further along), it should always mean an imposition of duty on a specific party, as in \u201cthe lessee shall pay.\u201d<\/p>\n

        But it can also impose a general, nonspecific duty; give permission; establish a conditional duty that depends on voluntary action; act as a future-tense modal verb; express an entitlement; and make a suggestion or even a promise.<\/p>\n

        Indeed, the use of modal verbs, especially \u201cshall,\u201d can be so fraught with mistakes that some legal drafters prefer to avoid them altogether, choosing \u201cthe parties are required to\u201d instead of \u201cthe parties shall,\u201d or \u201cthe parties are free to\u201d instead of \u201cthe parties may.\u201d If it is possible to use these alternatives without any loss of meaning, they are good options.<\/p>\n

        Most legal writers, however, understand that, while modal verbs might sometimes be expendable in sentences, this is not always the case. There are two main theories of usage, each named after its country of origin: the American Rule and the ABC Rule (Australian, British and Canadian).<\/p>\n

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