One of the skills taught in business and law school is the use and avoidance of “weasel” words. A weasel is a small agile and well articulated animal that can get into and out of very difficult places. As it relates to words, consider the word may as opposed to the words shall or will.
May is permissive and means that it is at the discretion of the party who is to perform. Shall is absolute and means a binding obligation to perform exactly as promised. Will is similar to shall except that it is not as strong or certain.
To illustrate the problem with weasel words, we need only to think of a typical contract we might be asked to sign. A contract always states something to the effect of: “buyer shall pay seller and seller agrees to …” Since most sellers write contracts, note that the word shall is used to address compensation but that agrees relates to what is being sold. There may be a legitimate reason for weasel words, but they are often used to give one party an advantage over the other.
When negotiating a contract for clients, I often insist that if my client is being asked to commit to shall that the other party likewise uses the same word for his obligation.
In addition to words of commitment to do something, also consider their use in an agreement not to do something. Shall not, will not, may not are examples, and we need to carefully read before we sign.
We often hear complaints about lawyers re-writing contracts, but they are using their document drafting skills to protect their client from the creative use of grammar, spelling and sentence structure.
Businesspeople should use lawyers the same as any other consultant or service provider, a necessary part of due diligence and risk avoidance.
One other thought: spelling and grammar always matter.
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