Functions of Modal Verbs in European and British Legal Documents

Abstract:

Researches in languages for special purposes have qualified legal texts as a distinctive type of texts. The purpose of this study is to describe linguistic features of modal verbs which were found in different types of legal writing and to examine the reasons for their use. In this paper I will try to compare the use of modal verbs in European Directives and British Statutes and to investigate the expression of obligation in legal texts such as contracts which are texts which lay down the obligations and the rights of the parties to the contract.
Key words: coherence, obligation, modality, legislation, variety, statement, behaviour.

Modal Verbs in Contract Law

There are different types of legal writing. According to their purpose there are operative legal documents, expository documents and persuasive documents. Legal language is widely spread in all areas of social life and it can be combined with language from different domains. The function of the law is double: regulative and constitutive. The legal genre represents a sublanguage which includes a wide range of texts and situational patterns. The legal genre contains a variety of sub-genres such as statutes, conventions and contracts.

There are different ways of expressing obligation in legal English. Legal documents may prohibit certain actions, may confer rights or create obligations, may permit or authorize certain actions. Therefore, there are four types of legal rules: authorizations, obligations, prohibitions and permissions. There are certain rules used in legal language to formulate these rules nut these are not subject to grammar rules but to drafting principles. The present study will focus on the investigation of grammatical ways of expressing obligation through the use of modal verbs.

The textual organisation of a contract contains the following elements: title, introduction, recitals, and definitions, body of the documents, provisions, signatures and dates. The contract law developed in the 19th century and derives from the principles which characterized the Industrial Revolution. Nevertheless, the origins of contract law are much more ancient than that and are to be found in the early common law of the Middle Ages. The main preoccupation of society at that time was land ownership and law developed very quickly in relation to the protection of ownership of land or of interests in land. As a result, the law of that time was also mainly concerned with property rights. The distinction that the law drew in terms of identifying the enforceability of rights was between formal agreements and informal ones. A formal agreement was one made in writing and which was authenticated by the practice of ‘sealing’. This is the origin of the deed, which was the method accepted for transfer of land and interests in land up to 1989, when the requirement to complete the document by the process of sealing was relaxed in favour of the already common practice of witnessing the document.

Narrative contracts often contain ambiguities (e.g., conflicts and gaps) and these must be avoided or at least the conflicts arising from them resolved. Furthermore, there may be complex interdependencies between contract clauses that can be hard to track down. The content of the contract has to be in conformity with the legal framework and it forces the parties to involve themselves in politeness strategies in order to avoid the face threatening acts.

The modal verbs occurring in contracts have double or triple functions and this applies to the modals shall, will, can and must. The modal will may be used to express either an obligation or a prediction, may and can express permission or possibility while must may express obligation (deontic use) or logical necessity. The strategies placing the parties to the contract under some kind of obligation are the most frequently used directives in English contracts. In order to express obligation in a contract the modal shall is used and expresses the illocutionary force of an order: “The distributor shall pay commission on a quarterly basis…”
The regulation of behaviour in a contract can be made by issuing prohibitions and here the modal verb shall is used again:

“The Representative shall not be entitled to enter into any contract or obligation on behalf of the Company without the express written consent of the Company being first obtained”.

Statements of permission issued by some authority are usually conveyed with the help of the modal verb may: “The employer may determine the hiring at any time by giving one month’s previous notice in writing…”
The contract also stipulates the limitations of liability and the assignment of benefits which are expressed with the help of shall. In this case the most frequently used verbs in connection with the auxiliary shall are: entitle, relieve, accept, have power, etc.
In the language of contracts shall represents the principal means of expressing obligations. Obligations and intentions are the main aspects dealing with a contract.
The modals shall and will have each been used to express modal meanings and to mark future time. But shall is rarely used to indicate future time. Shall is a modal used to impose obligation on the subject of a sentence. In contract law it conveys the meaning “has a duty to”. Lawyers tend to avoid using the modal must, because they find it too bossy. Another alternative instead of shall could be will but it seems less promising.

Even if many legal drafters tend to avoid using the modal must, this may be an alternative to shall as a means of expressing obligation. The use of must instead of shall may express any obligation whether it is imposed on the subject of a sentence. For example:”The Company must reimburse the Sales Manager for all authorized expenses”./”The meeting must take place at the company’s headquarters”. But a disciplined use of shall to impose an obligation on the subject of the sentence makes clear who owes the obligation: “The Company shall reimburse the Sales Manager for all authorized expenses.” An obligation can be expressed in other ways by using passive voice: “The Sales Manager shall be reimbursed for all authorized expenses.” Or one could use “is entitled to”: “The Sales Manager shall be entitled to be reimbursed for all authorized expenses.”
Shall is also used to express future time in contracts and these may result in confusion. There are cases when the simple present tense would be more appropriate as for example: “This agreement shall be governed by the Los Angeles law.”
Due to the fact that shall is unusual in ordinary speech, this modal verb has been criticized by the Plain English Campaign, which recommends the use of must to express obligations. (Tiersma, 214).

Comparative Analysis of Modal Verbs in European Directives and British Statutes

Modal verbs usually appear in the sequence of verbs in a verb phrase. They are finite verb form with no inflected endings and no past tense. They are followed by the short infinitive. The most frequently used modals in legal English are: shall, may, must, would, will followed by can, ought to, should. According to the European style guide the enacting terms of the EU legislation can be divided into two linguistic categories: imperative terms and declarative terms. The imperative terms may be further divided into positive and negative commands and permissions and the declarative terms are those terms that are implemented by virtue of being declared.

The study of modality is concerned with the meaning of the modals. Legal language contains both deontic and epistemic modality. Epistemic modality shows how certain is a speaker about an expressed utterance. Deontic modality involves both language and action and refers to the instances when the speaker orders, promises or places an obligation to someone. Deontic modality can be divided into: a) directives (expressing possibility by the use of may or necessity by the use of must); b) commissives (expressing promises) and imperatives.

I carried out a comparative analysis to show the frequency of the modals in both European and British legislative texts. The European directives used in this work were taken from the Official Journal of the European Communities and the Acts of Parliament from the online UK Statute Law Database.

Table 2
Act of Parliament Directive ↓ ↓
Shall → 60 301
Should → 20 150
Will → 10 6
Would → 30 12
Must → 90 1
Can → 5 30
Could → 10 5
May → 100 96

According to table 1 the most frequently used modal verb in the European directive is shall, while may is the most frequently used modal in the British Act of Parliament. EU legal drafters tend to use modal verbs in prescriptive statements and should is used instead of must because it is less strong than must. Bhatia states that “shall not only sustains the myth of precision in legal language but also perpetuates a style and language that differentiates the genre from that of other professions”.(Bhatia, 101-102) The verb shall is one of the most frequently used modal auxiliary in legislative writing, especially in European legal texts, and therefore it fulfils a variety of functions. Crystal and Davy talk about the different uses of this modal verb and state that in legal English: “Shall is invariably used to express what is to be the obligatory consequence of a legal decision, and not simply as a marker of future tense, which is its main function in other varieties.”(Crystal and Davy, 206-207)
In the European legal text shall is used to indicate a positive command, as for example:
“For authorisation as a payment institution, an application shall be submitted to the competent authorities of the home Member State…”
Shall may be also used to give directions or to indicate future events as in the following example:
“Each element shall be included in the sum with its positive or negative sign.”
Here the verb shall may have the meaning of is to be included, but it can be also interpreted as a future event meaning that after the directive comes into force each element will be included in the sum.
Shall is also used in both European and British texts to express an order:
“ If the payment service user provides information additional to that specified in Articles 37(1)(a) or 42(2)(b), the payment service provider shall be liable only for the execution of payment transactions in accordance with the unique identifier provided by the payment service user.” (Directive 2007/64/EC, 319-31)
In this example taken out from the European directive, the modal verb shall indicates the obligations of the payment service provider which represents the addresser. So, according to this provision the addresser must conform to this obligation of executing the payment transactions.
In British legal texts shall is used to express an obligation:
“Accordingly, in determining in the case of an offender whether it should take steps as mentioned in subsection (1), the court shall also have regard to the matters mentioned in those paragraphs.”(Criminal Justice and Immigration Act, Part 2, p. 8)
In this example taken from Criminal Justice and Immigration Act shall expresses the obligations of the court and the steps that have to be taken in determining the case of the offender.
Shall can be used to express the application of a directive:
“This Directive shall apply to payment services provided within the Community.” (Directive 2007/64/EC, 319-9)
Shall can also be used to state rules:
“This Section shall apply to other payment transactions, unless otherwise agreed between the payment service user and his payment service provider, with the exception of Article 73, which is not at the disposal of the parties.” (Directive 2007/64/EC, 319-30)
In this example shall serves as an indicator for the application of this provision. It also indicates the rules according to which this section is valid.
Shall may be used to express prohibitions:
“…such credit shall not be granted from the funds received or held for the purpose of executing a payment transaction;…” (Directive 2007/64/EC, 319-17)
The use of shall may also create ambiguity, especially in British legal writings:
“No order or regulations which, by virtue of section 18A, is or are to have effect for a limited period shall be made unless a draft of the order or regulations has been laid before, and approved by a resolution of, each House of Parliament”(Criminal Justice and Immigration Act, Part 4, p. 45).
The predicate from this sentence, containing the modal auxiliary shall refers to an inanimate subject no order or regulations. This indicates that a rule is imposed an abstract thing (in this case order or regulation) and the agent of the action is not specified. So, in this example we have passive voice without an agent. This construction shall + BE + past participle is frequently used in both types on legal documents. The construction shall + short infinitive is also widely used especially in European legal texts. Critics also say that legal drafters should avoid using a negative subject with the affirmative form of shall. (No orders or regulations (…) shall be made).
Shall is a modal verb which expresses a legal obligation, but in most of the cases this verb occurs with non-human subjects. Anna Trosborg argues that “statements with non-human subjects typically refer to functions of the statutory instruments, they explain when a law is effectuated, how far an act extends, whom it affects, how a term is to be understood, etc., and such they serve as conditions to be considered by the citizens as well as the court.”(Trosborg, 106). In this cases the modal verb shall has a declarative function and here are some examples when the modal verb is used with inanimate subjects:
“An authorisation shall only be granted to a legal person established in a Member State” (Directive 2007/64/EC, 25).
“A provision shall not be contained by virtue of subsection (1)(b) in a warrant under section 4A unless it satisfies the following two conditions” (Criminal Justice and Immigration Act, Part 6, p. 71)
In these texts I did not find any sentences where human subjects are specified.
In most of the instances shall is used in the passive voice with non human subject. Because of the fact that most of the passive constructions with shall are agentless, most occurrences of shall are unmotivated.
Verbal groups are characterized by a high number of non-finites. Among the finites the most frequently found group is modal auxiliary+ be +past participle, and in this construction the most used modal auxiliary is shall which expresses deontic modality. Crystal and Davy say that shall expresses “what is to be the obligatory consequence of a legal decision and not simply as a marker of the future sense, which is its normal function”( Crystal, Davy, 206-207).
e.g. : “Such waste shall be subject to all provisions of Directive 75/442/EEC. It shall in particular be:
– destined for duly authorised facilities only, authorised according to Articles 10 and 11 of Directive 75/442/EEC,
– subject to all provisions of Articles 8, 12, 13 and 14 of Directive 75/442/EEC”( Case C 176/05).
In this example shall occurs in passive sentences. In legal language shall does not indicate the future, it indicates an obligation. Shall is also to be found in declarations. It is commonly used in legal language and therefore it has the function of indicating that the document in which it occurs is legal.
The verbs used with shall are selected from a small number of lexical sets, such as apply, be, preclude, exceed, act, vacate, etc.
The frequency of this modal and the avoidance of the modal auxiliary must shows in a way an improvement over the British style, but its use in excess also leads to ambiguities regarding its different meanings.
Another modal verb that is predominantly used in legal texts is the modal auxiliary may. As table 1 shows, may is the most frequently used modal verb in British Acts of Parliament. May expresses permission, but it has some other additional meanings.
The following three examples have been taken from the Criminal Justice and Immigration Act and show different instances when this modal auxiliary is used:
(1) “…or with the requirements of any community order or any youth community order to which he may be subject…”
(2) “The court may make a youth rehabilitation order in respect of the current offence instead of imposing a fine…”
(3) “Rules under sub-paragraph (4)(a) may, in particular, make provision in relation to…”
(4)“The Secretary of State may by order amend paragraph 2, 3 or 4 by substituting for any reference to an amount of money or a number of hours or days there specified a reference to such other amount or number as may be specified in the order.”
In the third example reference is made to the inanimate subject rules, while in the first, second and fourth example references are made to human subjects. In the first sentence we have the pronoun he as a subject and in the second sentence the noun court. The most frequently used subject in combination with the modal may is the noun court. In the first sentence may indicates probability, possibility although this modal is not normally used to convey possibility or probability. This feature is characteristic for the common usage. In the fourth example may has the meaning of to grant a right or a power. But this sentence is a little bit ambiguous because the modal verb may can simply refer to the possibility that the Secretary of State might amend the paragraphs under certain circumstances.
The use of the negative form of may can be ambiguous. In spite of the fact that the positive form of this modal has a different meaning from must and shall, the negative form is the same. The negative form is used to express prohibition, something that is forbidden, and that is why this form should normally be avoided. Therefore may+not is used in the sense of limiting the rights or the powers of a provision as in the following example:
“The power conferred by subsection (1) may not be exercised in relation to any sentence or order if an appeal, or an application for leave to appeal, against that sentence or order has been determined” (Criminal Justice and Immigration Act, Part 3, p. 206)
In the example the negative form of may limits the power of this provision under certain circumstances. This means that the power under section 1 cannot be used in relation to any sentence if that appeal has already been determined.
The modal verb must is used to describe a requirement or a prohibition and in general English it expresses obligation. As table 1 shows, it is frequently used in British Acts of Parliament. The European drafters have tried to avoid using this modal auxiliary, perhaps because of the fact that shall is the most frequently used modal verb in the European directives. However, critics have argued that the use of shall and must at the same time leads to ambiguity because readers may not understand any more whether different meanings are intended.
Must + not expresses a prohibition, as in the following example:
“The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary…”(Criminal Justice and Immigration Act, Part 2, p. 22).
Must also expresses an obligation:
“Where on a reference under subsection (1) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.” (Criminal Justice and Immigration Act, Part 2, p. 22).
Here the verb must suggests that the Secretary of State has the obligation to give effect to the recommendation.

To sum up the functions of the most frequently used modals, one can say that the modal shall is the most frequent auxiliary used in the European directives. It fulfils many functions from imposing an obligation to creating rights or defining words. May is frequently used in British statutes and expresses permission and authorization. Must is used to express obligation and prohibition in legal language and should not be used as an alternative to shall.
The language of the legislative documents is not only informative providing the reader with details and useful information about their rights and obligations, but it also specifies and mentions the authority which issues, orders or prohibits certain acts. This authoritative and permissive dimension is conveyed in legal English by the means of modal verbs.

Bibliography

Bhatia, Vijay. Analysing Genre: Language Use in Professional Settings. London: Longman, 1993
Crystal, David. The Cambridge Encyclopedia of Language, Cambridge: Cambridge University Press, 1997.
Crystal, David and Davy, Derek. Investigating English Style. London: Longman, 1969.
Garner, Bryan. A Dictionary of Modern Legal Usage, second edition, Oxford University Press, 1995.
Kimble, Joseph. The Many Misuses of ‘Shall’ in Scribes J. Legal Writing, 1992.
Mellinkoff, David. The Language of Law. Boston: Little Brown, 1994.
Taylor, Christopher. Language to language: A practical and theoretical guide for Italian and English translators. Cambridge: Cambridge University Press, 1998.
Tiersma, Peter. Legal Language, Chicago: University of Chicago Press, 1999.
Trosborg, Anna. Rhetorical Strategies in Legal Language. Tübingen: Gunter Narr Verlag, 1997.

Corpus:

Case C 176/05, KVZ retec GmbH v Republik Österreich, March 2007
Criminal Justice and Immigration Act 2008
DIRECTIVE 2007/64/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 November 2007 on payment services in the internal market amending
Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC

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