Por Nick Potter

inglés jurídico

In  this series we look at real-life examples of the most common mistakes in English by native Spanish lawyers. These and lots more invaluable tips are available in a new e-book/paperback, here: 50 English Tips for Spanish Professionals.

must, should, shall

Giving advice often involves telling colleagues or clients what the rules and regulations say they must or have to do, what this will involve, and what they should or shouldn’t do. Each of the verbs involved is subtly different in meaning, so let’s take a look at them, shall we?

Question: Which ONE of A – G below is correct?

A Article 16 of the Spanish corporate tax law states that transactions between related parties should be valued at arm’s length
B This ruling can be appealed and such an appeal should be filed before 24 November
C Where claims involve several Properties, the total amount claimed shall be less than FIFTY THOUSAND EUROS (€50,000) to be settled in a local court
D To get dismissal declared null and void on the basis of a TUPE allegation (not easy), employees should allege fraud
E Please confirm that the SPV will be duly incorporated before signing. Otherwise, a substitution clause should be included in the conditional share purchase agreement (the “Conditional SPA”)
F Hi, I attach the draft power of attorney which shall be granted in France
G The client mentioned that according to Spanish legal requirements, the job contract shall be in Spanish. Could you arrange for it to be translated please?

Before you read the answer, remember:

Read some UK legislation and you will soon find that the words must, should and shall are used frequently. Here are a few examples.

Must (debe) is used to state that requirements and obligations exist:

  • “The directors of the UK merging company must draw up and adopt a report” [Companies (Cross-Border Mergers) Regulations 2007]

Precisely because it is used in so many rules and regulations, must can sound a little bossy and finger-wagging. When referring to somebody’s obligations in an email, for example, you might want to use required to or have to:

  • You are required to disclose this transaction.

Note that when referring to actions that are merely optional, and not requirements or obligations, we use may (podrá):

  • This may be done by setting up a SPV.

Should (debería) is used to recommend or to refer to what is appropriate:

  • “The Authority’s policy in determining what the amount of a penalty should be must include having regard to—“ [Financial Services and Markets Act 2000]

It can also be used to talk about probability or to mean “if”.

  • This shouldn’t be a problem (it’s not likely to be a problem)
  • Should you have any queries, please contact us (plain English – If you have any queries, please contact us)

Shall is also used to lay down rules and regulations:

  • “… being unaware of the defecation (whether by reason of not being in the vicinity or otherwise), or not having a device for or other suitable means of removing the faeces, shall not be a reasonable excuse for failing to remove the faeces” [Dogs (Fouling of Land) Act 1996 – if only it applied in Madrid!]

Again, “shall” can sound bossy for this reason, although you may just occasionally hear it in everyday conversation with “we” and “I”:

  • Let’s go, shall we?
  • I shall pretend I didn’t hear that

What’s “shall” in Spanish?

It’s the future form of any verb that is used in a legal document to state a formal obligation for the third person subject (X deberá, entregará, devolverá). In the case of certain cursed dog owners: “no será una excusa…”.

Do not use “shall” to refer to obligations in informal texts like emails or simply to describe the future – it sounds unnatural and pompous. Use “will” instead.

For example, here’s a sentence in a formal legal document:

The Purchaser shall pay the Purchase Price within a period of 10 Business Days [shall is the right word here = it’s a formal obligation for the Purchaser, stated in a contractual clause]

And here’s a sentence from some email advice on obligations in Spain.

The Spanish tax representative shall file a monthly tax return within the first twenty calendar days of the following month [shall is not the right word here, it’s too formal – better to advise that the representative “is required to file“ or “will have to file” the return].

So:

A and B are wrong because they describe rules (must, required to, have to) – not recommendations (should).

A Article 16 of the Spanish corporate tax law states that transactions between related parties should must be valued at arm’s length
B This ruling can be appealed and such an appeal should has to be filed before 24 November

 

We looked at how “shall” can be used to state obligations. But in C we are not talking about an obligation. It simply states a rule.

C Where claims involve several Properties, the total amount claimed shall must be less than FIFTY THOUSAND EUROS (€50,000) to be settled in a local court

 

D is wrong because it sounds like the person writing is recommending a course of action to the employees (“should”). However, the advice is actually for the employer, describing how the relevant rules work.

D To get dismissal declared null and void on the basis of a TUPE allegation (not easy), employees should would have to allege fraud

 

E is the correct sentence. It is not describing a rule, requirement or obligation – just a recommended step for the client to protect itself.

E Please confirm that the SPV will be duly incorporated before signing. Otherwise, a substitution clause should be included in the conditional share purchase agreement (the “Conditional SPA”) [CORRECT]

 

F and G are examples of misuse of “shall” in emails. One simply refers to the future and the other has the wrong tone.

F Hi, I attach the draft power of attorney which shall will be granted in France
G The client mentioned that according to Spanish legal requirements, the job contract shall is required to be / has to be in Spanish. Could you arrange for it to be translated please?

 

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