Many English-speaking lawyers get worked up over the correct use of the words “shall,” “will” and “must.” There is an interesting parallel in Japanese between different words of obligation. Consider the following phrases:
支払う
shiharau
This is the dictionary word for “to pay,” and would usually mean “will pay” (in the future tense) when used in a legal document. Depending on context, this could denote an obligation to pay, a condition triggered by payment, or a representation that a payment will be made in the future.
支払うものとする
shiharau mono to suru
This is the most common way of stating an obligation in a Japanese contract. In a legal document, this phrase would usually mean that the payor has an obligation to pay unless there are reasonable grounds not to; it sets forth a general rule that may have exceptions.
支払わなければならない
shiharawanakereba naranai
This is also commonly seen in Japanese contracts. In a legal document, this phrase would usually mean that the payor has a relatively firm obligation to pay (at least in comparison to 支払うものとする).
These three forms are often used somewhat interchangeably in practice, though they have different nuances. A style guide from Kochi Prefecture suggests that when drafting ordinances, the prefecture’s obligations should be described using the plain dictionary form (e.g. 支払う), while other parties’ obligations should be described using either ～ものとする or ～なければならない depending on the desired intensity of the obligation. Meanwhile, a law firm in Nagoya suggests that the plain dictionary form creates a stronger obligation than the ～ものとする form.
What’s the best way to render these three phrases in English? I usually translate them as “will pay,” “shall pay,” and “must pay,” respectively. Though these are not perfect translations, they capture some of the same ambiguity.
Like “～ものとする,” “shall” may serve as a statement of non-binding intention depending upon the context. “Shall pay” is arguably softer than “will pay,” particularly when used in the first person. However, the proper usage of “shall” is not settled among experts: U.S. federal plain language guidelines state that “shall” should not be used due to its lack of clarity, while one of the most noted commentators on contract drafting, Ken Adams, thinks it is fine to use for contractual obligations as long as it is used consistently. In practice, American transactional lawyers still use “shall” all the time when defining obligations in contracts, just as Japanese transactional lawyers use “～ものとする.”
Now how about the following:
支払わなければならないものとする
shiharawanakereba naranai mono to suru
I see this grammatical structure in Japanese contracts from time to time, and the only logical way I can think of to translate it is: “shall be required to pay.” Frankly, it doesn’t make a lot of sense, so an equally nonsensical English translation seems appropriate.