This past week I attended a continuing legal education course on common mistakes encountered in drafting contracts. It was quite interesting! The speaker focused on the contract for Amazon’s recent acquisition of Whole Foods. Despite the fact that this was a very high-level transaction involving scores of attorneys from multiple firms on each side, our speaker was able to spend an entire workday illustrating hundreds of drafting mistakes in that contract.
One of the bigger mistakes discussed at length was improper use of the word “shall.” In the contractual sense,“shall” is a command word. The speaker took us through many clauses from the Amazon contract containing “shall” and asked us to substitute it with “has a duty to." If the sentences made sense with the substitution, then “shall” was used properly. If not, then there should’ve been a different word used in its place. According to our speaker, the Amazon contract used “shall” 375 times, and approximately 260 of those uses were improper!
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