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What is your opinion on "shall" vs. "will" in contracts?

These words have different meanings but both can be used effectively in contract drafting as long as you're careful about your usage.

Shall
Did you know that "shall" is the most misused word in all of legal language? It is. In the current edition of Words and Phrases , "shall" alone is followed by 109 pages of case squibs, and "shall" phrases cover 45 more pages. Yet its misuse is one of the most heavily repeated errors in all of law.

• Status: "Full capacity" shall have the following meaning . . .
• Future action: If . . . then the contract price shall be increased . . .
• Faulty imposing of obligation: The remaining oil shall be sold by lessee . . .

• Lessee shall sell the remaining oil . . .

• Lessee [an actor capable of carrying out an obligation] shall [has a duty to] sell the remaining oil . . .

• Landlord will clean and maintain all common areas.

Recommendation
In most basic contracts, I recommend using "will" to create obligations, as long as you are careful to be sure any given usage can't be read as merely describing future events. I'm generally against "shall" because it is harder to use correctly and it is archaic. But not everyone agrees with me. Kenneth A. Adams, A Manual of Style for Contract Drafting 24-25 (ABA 2004). Adams prefers using "shall" as long as it's used correctly.

See also Joseph Kimble, The Many Misuses of Shall, 3 Scribes J. Leg. Writing 61 (1992)

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[Plain language] has a bad name among some lawyers. This is usually because they don't understand enough about it to judge it properly. --Michele M. Asprey, Plain Language for Lawyers 11 (2d ed., Federation Press 1996).

A related bonus of a plain language style is the potential for reducing mistakes. Traditional legal language tends to hide inconsistencies and ambiguities. Errors are harder to find in dense and convoluted prose. Removing legalese helps lay bare any oversights in the original. --Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language 89 (Cambridge U. Press 2001).

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