Word Choice — Modal Verb Taxonomy
Clarify legal language in contracts with a modal verb taxonomy for precise drafting.
Apply to every contract review, redline analysis, and drafting task.
Modal Verb Hierarchy
| Verb | Legal Force | Usage | Risk on Change |
|---|---|---|---|
| SHALL | Mandatory obligation. Non-compliance = breach. | Enforceable duties only. | Downgrade to WILL = automatic Substantive flag |
| WILL | Statement of intent / future action. Weaker enforceability. | Future commitments, representations. | Upgrade to SHALL = improves enforceability |
| WOULD | Conditional or hypothetical. | NEVER in operative clauses. | Flag immediately — replace with SHALL or WILL |
| MAY | Discretion or permission. | Rights, options, permissions. | Downgrade from SHALL = weakens obligation |
| COULD | Possibility. | NEVER in operative clauses. | Flag immediately — ambiguous enforceability |
| MUST | Equivalent to SHALL in modern drafting. | Use SHALL for consistency in Indian contracts. | Acceptable if consistent throughout |
Golden Rule
Any change between these verbs across contract versions is automatically a Substantive change, regardless of context.
Flag every instance. State:
- The original verb
- The replacement verb
- The legal consequence of the change
- The recommended correction
Common Traps
- "The Company will pay" — does "will" mean a promise or intention? Use SHALL if it's a duty.
- "Either party may terminate" — discretionary; neither party has an obligation to terminate.
- "The Board would consider" — hypothetical; creates no obligation. Replace with SHALL consider.
- "Counterparty can request" — "can" implies ability, not right. Use MAY for permissions.
DPDP Act 2023 Note
Section 7 consent obligations: data principals SHALL be notified (mandatory). Use SHALL for all data processor obligations under the Act.