Various authors (Butt and Castle 2006; Coulthard and Johnson 2007; De Groot 1998; Garner 1986, 2002, 2011; Haigh 2004; Hiltunen 1990; Solan 1993; Tiersma 1999, 2008; Williams 2004; Schane 2006; Stanojević 2011) have explored about the relationship between language and law. The general features of the legal language and the development and changes it underwent over time; discourse and pragmatic analyses; comprehensibility and simplification are just some of the studies conducted about the interconnection between language and the law. Correspondingly, in admitting that the law profession is the most word-replete next to journalism, Cruz and Quiason (2001) recognize the heavy demands expected from law practitioners about the use of the oral and written language in the legal profession. It must then be emphasized that language plays a very important role in the field of law. The law itself would be meaningless without language; it largely depends on language. As what Lintao (2015) asserts, “the prominent role of language as the heart of the law can never be underestimated” (p. 1).
Considerably, the legal language is dominated by repetitions, archaic words and phrases, technical terms, binomial and multinomial expressions, long sentences containing several clauses, unusual propositional phrases and the use of nominalization. A problem arises in written legal texts when lay people are hardly able to understand such documents. One specific type of these legal documents with growing issues on comprehensibility is the contract. A significant number of studies point out that contracts are still couched in traditional old-fashioned drafting of complex and impenetrable legalese (Adams 2008; Broome and Hayes 1997; Damstadter 2008; Williams 2010).
The calls for clarification of written legal discourse including contracts have resulted in the passing of laws, one of which is the signing of the Plain Writing Act of 2010 by U.S. President Barrack Obama on October 13, 2010. This law obliges federal institutions to employ “clear Government communication that the public can understand and use” (Plain Writing Act of 2010: Purpose, 2010). Corollary to this law, the U.S. President issued Executive Order 13563-Improving Regulation and Regulatory Review which mandates the regulatory system to be “accessible, consistent, written in plain language and easy to understand” (Exec. Order No. 13563, s. 1 General Principles of Regulation, 2011). Simplification mostly affected are loan contracts, insurance policies, leases and similar types of documents dealing with commerce, banking or insurance, while in other types of legal instruments, ancient formulas recur and preserved patterns remain intact. In the Philippine setting, major and minor initiatives both in the current Sixteenth Congress (2013–2016) and in the Fifteenth Congress (2010–2013) have been carried out but no bills were approved beyond the committee level that may be due to the lack of priority afforded by the lawmakers to these kinds of bills.
Article 1305 of the Philippine Civil Code defines a contract as “a meeting of minds between two persons whereby one binds himself with respect to the other, to give something or to render some service.” Simply put, a contract is a legal text that establishes agreements consisting of rights and duties to which two parties consented. De Leon and De Leon (2011) emphasize that contracts are “enforceable through legal proceedings” (p. 288); otherwise, they are merely regarded as moral or social agreements. One of the issues confronting the language of the law is the use of modals that are apparent in contracts.
Modality, from the perspective of cognitive linguists, relates to the “speaker’s assessment of, or attitude towards, the potentiality of a state of affairs” (Radden and Dirven 2007: 233). In other words, a person’s own subjective view towards a proposition is interposed in using a modal. Sometimes called “helping verbs”, modal auxiliary verbs are “little” words that precede the main verb of a sentence, and are largely used (across registers) to express a speaker’s or writer’s “opinion or attitude towards the proposition that the sentence expresses or the situation that the proposition describes” (Quirk and Greenbaum 1973: 37).
The concept of modality has been the subject of an appreciable body of research from different disciplines such as philosophy and logic and linguistics. Cameron (2007) asserts that modality serves as means that allow people to forge or devise varying claims such as assertions, opinions, hypotheses and speculations and present varying levels of commitment to these assertions. The research efforts on the part of linguists such as Trosborg (1995) and Lauridsen (1992) paved the way for new discoveries on some notable taxonomies and functions of modal auxiliary verbs. For this reason, modal auxiliary verbs may be involved in the expression of time, necessity, possibility, permission and obligation as well as such grammatical phenomena as negation, affirmation and questioning.
A type of modality that is very much visible in contracts is the deontic modality. Derived from the Greek word that means “obligation”, deontic expresses meanings pertaining to obligation and permission. The synallagmatic nature of contracts which pose reciprocative obligations and shared duties and rights between parties bring about the use of deontic expressions. Nuyts et al. (2005) define deontic modality as an attitudinal aspect or a directive attitude that concerns “an indication of the degree to which the “assessor” (typically, but not necessarily, the speaker) can commit him/herself to the state of affairs in terms of certain principles external to that state of affairs, in this case “moral” principles (p.8). In this case, sentences containing deontic meanings affect how actions and situations are realized.
Matulewska (2010) did a comparative study of the methods of presenting deontic modality of 45 British-English, American-English and Polish contracts and statutory instruments (British laws or regulations). She found out differences in the use of deontic modality between the two materials to some extent; that is, fewer uses on contracts. The use of must which is gaining popularity in modern statutory instruments and in American setting replacing shall, is not found in contractual clauses except for the contracts promoted by the Plain English Campaign.
In Zelenka’s (2013) study on Modality in the Language of Legal Documents, results of her study revealed that shall is the most overused and misused modal among the 20 legal contracts examined occurring 384 times in positive usage or 86 % of the entire usage and 59 times in negative employment or 14 % in expressing obligation noting that such misapplication led to disorientation in coming to terms with legal documents.
Lauridsen (1992) investigated how the English modals can and may in four text types comprising the Contract Law based on logico-semantic and pragmatic parameters. Noted indeterminancy between the two modals was noted. Results revealed obscure or hazy in terms how these modals were used in the documents.
The study of Bondi and Diani (2010) examined the deontic values conveyed in English and Italian contracts. The study revealed that the use of shall in English contracts and dovere in Italian contracts were the commonly used modals. Moreover, the modals of obligation were dominantly used in the English contracts. However, there was a balanced use of the modals of obligation, permission, and prohibition in the Italian contracts. It is also important to note that in their study, English contracts were characterized to be formulaic and that the presence of the modal shall is an evident marker of an occurrence of a mandatory rule.
In his book on Statutory Constructions in the Philippine context, Suarez (2007: 156) explains:
Terminology- the words or phrases regarded as making a provision mandatory include “shall” and “must”, while the word “may” and the phrase “it is lawful” are usually regarded as permissive or directory.
While the word “shall” is a word of command and generally considered as mandatory, it shall be considered as permissive when it can be gathered from the context as well as from the language of the statue that such is the apparent intention of the legislature.
The word “may” may, at times, be construed as “shall” if the statute provides for the doing of some act which is required by justice or public duty, or where it vests a public body or office with power and authority to take such action which concerns the public interest or rights of individuals.
Such puzzlement in the use of the word shall is the main contention in a Philippine legal case of Diokno vs. Rehabilitation Finance Corporation in 1952 when Diokno, the plaintiff, filed a case against his company and obliging the latter to accept his backpay certificate as payment for his loan. His argument was based on Section 2 of the Republic Act No. 304 which states that “investment funds or banks or other financial institutions owned and controlled by the Government shall subject to availability of loanable funds x x x accept or discount at not more than two per centum per annum for ten years such certificate.” The Philippine Supreme Court En Banc upheld the ruling of the lower court siding with the defendant or the Rehabilitation Finance Corporation that among others, the use of shall in that particular section of the law is not regarded as obligatory, merely directory. It was emphasized in the ruling that while it is true that the meaning of shall is considered to be requisite or binding, such word may not always be absolute and may mean only as a possibility depending on how it is used in context or by the intention of the statute.
Other legal court cases were contended in the use of the modals in the case of Bersabal vs. Salvador (1978), with the petitioner seeking to invalidate or reverse the orders of the respondent Court of First Instance judge, the ruling upheld the mandatory meaning of the word shall in R.A. No. 6031 and in part states, “Court of First Instance shall decide such appealed cases on the basis of the evidence and records transmitted from the city or municipal courts…” The court underscored the obligatory notion of the word shall in stating that the provision that it is the Court’s mandatory duty to act on and decide on the basis of the available pieces of evidence and records transmitted to the Court. The court asserts that as a general rule, the word shall is regarded to be imperative, “operating to impose a duty which may be enforced” as in the case of Dizon vs. Encamacion, L- 18615, Dec. 24, 1963, 9 SCRA 714, 716–717.
1.3 Research questions
The preceding literature, various empirical studies and actual Philippine court cases put forward how deontic uses in legal documents such as contracts can bring about issues and confusion leading to comprehension problems. Contract drafting entails a specialized work that a legal drafter must be able to write assessable and comprehensible contracts. In the light of these concerns, it is significant and interesting to analyze the modals in view of how contractual modalities are interpreted in the Philippine context. In the same way, it would be noteworthy to investigate how the most commonly misused modal shall is employed in the different Philippine contracts. This study then was aimed at examining the use of deontic modality in selected Philippine contracts. Specifically, it attempted to address the following questions:
What modals/non-modals are employed in expressing the meanings of obligation, permission and prohibition in selected Philippine contracts?
How is the modal shall utilized in the given contracts?
1.4 Frameworks used in the study
This study was hinged on the following frameworks in studying how the deontic meanings of obligation, permission and prohibition are expressed in different Philippine contracts, and in examining how the most commonly misused modal shall was employed in the different contracts.
1.4.1 Matulewska’s (2010) three meanings in analyzing contracts
Matulewska (2010) cited three meanings expressed by the modal verbs in the analysis of the contracts: 1) obligation, 2) prohibition, and 3) permission.
Obligation- pertains to the “duty to perform” (p. 76) which is subdivided into three sub-meanings:
unlimited duty- it is an imposed obligation that is binding whatever the situation is (a contractual obligation)
conditional duty- it is an imposed obligation performed only in certain circumstances (a contractual obligation)
external duty- imposed obligation enforced to the actor not by the contract but other factors (non-contractual obligation)
Prohibition refers to the obligation not to perform or withhold or refrain from doing with the three sub-meanings as follows:
unlimited prohibition- inhibiting or forbidding to do an action regardless of any situation (contractual prohibition)
conditional prohibition- inhibiting or forbidding to do an action applicable under certain circumstances (contractual prohibition)
external prohibition- inhibiting or forbidding to do an action not by the contract but by other factors (non-contractual prohibition)
Permission- the right or claim to which a party is allowed or authorized. The following are sub-meanings characterized in permissions:
unlimited permission- the right or claim which may be applied or exercised despite any situation (contractual permission)
conditional permission- the right or claim which may be applied or exercised under certain situations (contractual permission)
external permission- the right or claim which may be applied or exercised under statutory situations (non-contractual permission)
1.4.2 Stark’s fundamental rules in using Shall and Will in contracts
In terms of the use of shall and will, Stark (2007) presents the fundamental rules in using will and shall in contracts: use shall to illustrate obligation and will to signify the future. She further admits that drafters commonly misuse shall that they even believe they are employing it correctly even if they are not.
Stark (2007) also demonstrates that basically, a party must come before the word shall; otherwise, the use of shall is wrong. Next, shall must not be coupled with a form of the verb, to have or to be (e. g. The Bank shall have the authority… or This agreement shall be governed…). Thirdly, if a party precedes shall in a clause that illustrates conditions in which an event may occur, then the use of shall is wrong (e. g. *If the cardholder shall fail to settle the amount due…). Since shall indicates obligation, it is important to determine the parties’ intention of other sentences if they are a) a statement of discretionary authority (in this case, use may); b) a present tense declaration (present tense); c) a provision purporting to bind a non-party (requiring the parties to perform, not the arbitrators); or d) a condition. In the end, she asserts that to ascertain the correctness of the word shall, it must be preceded by a party and must be followed by a promise or an obligation to do or not to do something.
Using the classifications of legal documents used by Hathaway (1996), all the following types of contracts served as the data in this study: consumer-finance, insurance, construction services, employment and investment contracts. The entire corpora of 38,700 words were culled from 10 different Philippine contracts from the following: 1) a credit card contract; 2) an employment contract; 3) an airline service contract; 4) a car loan contract; 5) an insurance and investment contract; 6) a residential building construction agreement; 7) a shop construction contract; 8) an agreement on photocopying services 9) a cable contract; and 10) a telecommunications service contract. For ethical reasons, the contracts under study were masked as XXX and labeled Contract 1, Contract 2, Contract 3 up to Contract 10, respectively.
A textual analysis was employed in examining the usage of modals in selected Philippine contracts. Each modal and even a non-modal expressing the meanings of obligation, prohibition and permission was evaluated separately using Antconc, a freeware concordancer together with Microsoft Word and Excel programs. Information on the number of occurrences and how each modal/non-modal reflects the rights and obligations in relation to a promise, the “value” conveyed by deontic modality for distributing such rights and obligations was determined. In addition, both the correct and inaccurate uses of shall in all of the 10 contracts based on Stark’s (2007) concept were also evaluated.
3.1 Modals/Non-modals with deontic meanings
As discussed in the earlier part of this study, obligations have sub-meanings; namely, unlimited duty, conditional duty and external duty. The modal shall was the most common word used in expressing obligation.
126.96.36.199 Modals that express obligations
The chart (Figure 1) above presents the number of occurrences of shall (94) expressing obligation, as understood as the duty to perform. Based on the corpora used, 30 or 31.9 % uses of shall were identified as unlimited duty (a binding, contractual obligation no matter the situation); 43 or 45.7 % instances of shall as conditional duty (a contractual obligation in specific circumstances); and 21 times or 22.3 % incidence of shall distinguished as external duty (a non-contractual obligation).
Sample of Obligation (Unlimited Duty) from Contract 2- Employment Contract:
2. The seafarer shall submit to the order of the master or to the laws of any country within the territorial jurisdiction of which the ship may enter to have such vaccination or inoculation or to undertake measures to safeguard his health and the entire crew complement.
The sample above highlights the subject (seafarer) has the duty (obligation to perform which is binding no matter the situation) to perform the action (to submit to have such vaccination or inoculation or to undertake measurer to safeguard his health and the entire crew complement).
Sample of Obligation (Conditional Duty) from Contract 2: Employment Contract:
1. The seafarer shall join the ship and be available for duty at the date and time specified by the employer.
The given example emphasizes that the subject (seafarer) is enforced to fulfill his obligation to perform (shall join the ship and be available for duty) only in specific circumstances (at the date and time specified by the employer).
Sample of Obligation (External Duty) from Contract 1- Credit Card Contract:
21. Collection of Litigation Fees and Expenses
If the Payee/Mortgagee is compelled to engage the services of a collection agency to enforce any of its rights under this Note, the Maker/Mortgagor shall pay the Payee/Mortgagee the collection fees equivalent to not less than ten percent (10%) of the total outstanding obligation based on the Payee/Mortgagee’s records, and reimburse the Payee/Mortgagee for all actual expenses for collection and recovery efforts, including finder’s fees, skip tracers, repossessors and the like.
The example cited above exhibits that there is an obligation to perform imposed on the actor not by the contract itself but by a statutory instrument, a non-contractual obligation. In this particular context, the maker/mortgager has the “external duty”, a non-contractual obligation to the collection agency hired by the payee/mortagee.
Based on Table 1 alone, out of the 94 incidence of shall in all of the 10 contracts under study, it is evident that the strong occurrences of shall expressing obligation is in Contract 2- Employment Contract, in which the modal shall represents the principal means of expressing obligations (unlimited duty-20; conditional duty- 21; external duty- 6). This particular contract contains certain items/ terms of conditions which both parties should uphold or placed under some kind of obligation. A confirmation of this concept can be found in Trosborg’s (1997) words: “In outlining the terms of contracts, rules are formulated with the intent of ordering human relations. One party of the contract (e. g. principal, seller, franchiser) imposes a certain behavior on the other party (e. g. agent, buyer, franchisee) and vice versa” (p. 63) as evident in this example from Contract 2- Employment Contract:
The principal/employer/master/company shall provide the seafarer with facilities to do so at no expense to the seafarer.
Based on the example above, shall has a characteristically deontic meaning, prescribing that the (grammatical) subject perform the action predicated in the verb form. It should be noted as well that the main aspects in dealing with contracts are in the obligations and intentions.
Figure 2 shows the number of times (26) will was used in contracts. Will is particularly frequent in certain types of contracts; but in most legislative texts, it is comparatively rare, as judges may consider it as not having legally binding force. According to Adams (2008: 43–44), “[…] in general usage, will expresses future time rather than obligations, and using will to convey obligations as well as futurity would likely result in the sort of confusion that those who advocate abandoning shall are hoping to avoid”. Will expresses futurity or signals an agreement between the parties. The use of will means that parties have agreed upon an event’s occurrences without intending to impose a duty on a party. With 26 occurrences, the term is not merely stating future event; it is creating a promise to perform such as in Contract 3 (Airline Service Contract) on General Terms and Conditions of Carriage of Passengers and Baggage example provided below:
The Airline will accept formal and legal notices or documents only at its head office in Pasay City, Philippines, unless otherwise permitted by the Warsaw Convention or Montreal Convention.
Table 2 shows that of the 26 total number of occurrences of will, with majority of its uses assessed as an obligation of external duty totaling to 10, a non-contractual obligation found in Contract 3- Airline Service Contract, an extract of which is provided below:
If a Checked Baggage is carried on a subsequent flight, the Airline will deliver it to the Passenger unless applicable law requires the Passenger to be present for clearance by customs authorities.
It is also interesting to note that the same contract (Contract 3- Airline Service Contract) contains the bulk of the modal will with 20 occurrences (unlimited duty-2; conditional duty-8 and external duty-10) all accounting for 62.5 % in relation to all the contracts under study as exemplified below:
The Airline will retain Passenger information for as long as it is necessary to fulfill the purpose for which the information was obtained or collected, or as may be required by law.
The given example with the use of the modal will emphasizes an obligation to perform (will retain Passenger information) no matter the situation (unlimited duty) as evident in the phrase for as long as it is necessary to fulfill the purpose (unlimited) or as may be required by law.
Contract 3- Airline Service Contract:
The Airline will exert reasonable efforts to notify the affected Passengers of any change in or postponement of the flight schedule through the contact details which the passenger provided at the time of booking
The example above clearly shows the use of will as conditional duty wherein both parties (The Airline and the Passengers) have agreed upon an event’s occurrences (to be notified of any change in or postponement of the flight schedule) without intending to impose a duty on a party/ The Airline (will exert reasonable efforts).
Meanwhile, notable two number of occurrences of modal will reflecting unlimited duty appears in Contracts 3 – Service Contract, Contract 8- Service Agreement on Photocopying Services and Contract 10 – Telecommunications Service Contract with the following extracts:
Contract 3- Airline Service Contract:
Except for this instance, the airline will follow a one booking-one Travel Fund policy.
The modal will in the example above emphasized an unlimited obligation to perform a duty, that is, to follow a one-booking one Travel Fund policy which applies to all.
Contract 8- Service Agreement on Photocopying Services:
The SECOND PARTY will make regular inspection and adjustment at least once every two (2) weeks to keep the SECOND PARTY’s machine in good working condition.
The given example above using the modal will as an unlimited duty signals an agreement between the parties (Second Party and presumably the First Party) of the obligation to perform (to make regular inspection and adjustment at least once every two (2) weeks) with no time limitations.
Contract 10- Telecommunications Service Contract
I am fully aware of the mobile internet service provided by XXX Telecom and I will take full responsibility for my data usage (and consequently, charges incurred) since I have been briefed on the services, promos and rates by the Customer Representative.
The example provided above emphasizes the function of will as an unlimited duty, wherein both parties (XXX Telecom and the client) have agreed upon an event’s occurrences (data usage report) that the client will take full responsibility for the charges incurred since the client has been briefed on the services, promos and rates without intending to impose a duty on a party, XXX Telecom.
188.8.131.52 Non-modals expressing unlimited duty
Aside from the use of modals shall and will in expressing obligations, it was observed that non-modals were also utilized as shown in the following chart:
The chart above (Figure 3) presents the number of occurrences of the following non-modal verbs which express unlimited duty. With all the selected Philippine contracts used for the study, the non-modal verb agree appeared 10 times or 38.4 % most especially in Contract 10- Telecommunications Service Contract as exemplified in an extract below; undertakes with 5 or 19.2 % occurrences in 5 various contracts- Contract 3 on Airline Service Contract; Contract 4 on Car Loan Contract; Contract 6 on Residential Building Construction Agreement; Contract 7 on the Shop Construction Contract and Contract 8 on Service Agreement on Photocopying Services; is agreed was used 4 times or 15.4 % thrice in Contract 1- Credit Card Contract and once in Contract 4- Car Loan Contract; contains with 3 or 11.5 % instances, 2 from Contract 9 on Cable Service Contract and 1 from Contract 3 – Airline Service Contract. Both mutually agreed and warrants appeared twice; with 7.69 % each for Contracts 2 Contract of Employment, Contract 4 on Car Loan Contract and Contract 6 on Residential Building Construction Agreement, respectively.
Contract 10- Telecommunications Service Contract:
I confirm that I have read and understood the Terms and Conditions stated in this document and I agree to comply with them. I understand that Globe reserves the right to change the Terms & Conditions stated herein without prior notice.
The example provided emphasizes the function of the non-modal verb agree to also express obligation or the duty to perform in complying the Terms and Conditions stated in the document.
Meanwhile, the non-modal verb undertakes used in Contract 7 – Shop Construction Contract also expresses that the subject (the Contractor) has the duty (obligation) to complete all the above stated works of the owner as stated in:
WHEREAS, the CONTRACTOR hereby undertakes to complete all the above stated works of the OWNER for an estimated period of FORTY FIVE (45) working days more or less with exception in case of unworkable weather condition.
184.108.40.206 Other modals expressing conditional duty
Conditional duty is an obligation performed only in specific circumstances. Out of the 134 occurrences of modals in expressing conditional duty, the most common modal verb must was used with 76 or 56.7 % incidence; should with 50 or 37.3 % occurrences; must be met was used 5 times or 3.7 % in all the documents used; and ought to have used 1 time or 0.74 %% over-all (Figure 4).
The modal must is commonly used to denote obligation/requirement/compulsion. The presence of the modal must obliges the subject of the sentence to do the action and that the speaker exercises his/her authority over the person/s mentioned in the clause as evident in the following samples:
Contract 1- Credit Card Contract:
The cardholder must furnish new surety(ies) acceptable to XXX within thirty (30) calendar days from discharge.
The example above clearly shows that the presence of the modal must compels the subject (the cardholder) to do the action (furnish new surety(ies) acceptable to XXX within a given (specified) time frame of thirty (30) calendar days as a condition.
Contract 3- Airline Service Contract:
10.2.4 Passengers intending to undertake international travel must possess a valid passport which shall not expire within six (6) months from the date of his scheduled flight, and the applicable valid visas. They must also have a return or onward journey booking and be able to satisfactorily prove upon request sufficient means of financial support during their stay in the country of transit or destination.
The use of the modal verb must in the example above is used to strongly assert that it is extremely needful, and therefore obligatory to possess a valid passport or applicable valid visas of those passengers who intend to undertake international travel as the condition.
Next to the modal must is the modal should, in terms of the most number of usage (50 times) in the contracts under study. Should implies a degree of advisability (Downing and Locke 1992); hence, it is a less binding nature of obligation; a polite, indirect option with respect to more categorical alternatives such as shall, must, will as shown in the following extract:
Contract 2- Employment Contract:
Section 26. Change of Principal
A. Where there is a change of Principal of the ship necessitating the pre-termination of employment of the seafarer; the seafarer should be entitled to earned wages and repatriation at employer’s expense. He shall also be entitled to one (1) month basic pay as termination pay
220.127.116.11 Non-modals used in expressing external duty
External duty is an obligation to perform imposed on the actor not by the contract but by other factors such as statutory instruments, forms of delegated or secondary legislation. Since obligation, prohibition and permission in contracts may be expressed by modal verbs and other exponents of deontic modality, the following phrases are used to refer the reader to a statutory instrument: in compliance with (provisions of), in accordance with (provisions of), which are not direct exponents of deontic modality but due to the contextual meaning, they express obligation to refer to some provisions of statutory instruments. Pursuant to, on the other hand, is to say something’s in accordance (in agreement; consistent) with a particular law, ruling, or request.
The phrase in accordance with (provisions of) was used 35 times; in compliance with (provisions of) appeared once; pursuant to is replete with 17; and provisions of with a single occurrence as shown in the following examples:
Contract 2- Employment Contract:
SECTION 6. WAGES
1. All seafarers shall be paid for their work regularly and in full in accordance with this contract. They shall be paid monthly wages not later than 15 days of the succeeding month from the date of commencement of the contract until the date of arrival at point of hire upon termination of their employment pursuant to Section 18 of this contract.
Contract 4- Car Loan Contract:
26. Waiver and Grant of Authority to BDO Unibank, Inc.
The Maker/Mortgagor hereby waives confidentiality of client (including without limitation, the provisions of Republic Act (RA) Nos. 9510, 1405, as amended and any law relating to the secrecy of bank deposits) and pursuant to BSP Circular No. 472 Series of 2005 as implemented by BIR Revenue Regulation No. RR-4 2005, and authorize the Payee/Mortgagee to
Contract 9- Cable Service Contract:
1. Service. DCS shall utilize all necessary equipment & take all required measures to provide the subscriber with cable television service. Such service shall be in compliance with the rules & regulations of the National Telecommunications Commission.
Article 1156 of the Philippine Republic Act 386 (New Civil Code) provides that “an obligation is a juridical necessity to give, to do or not to do”. The second meaning expressed by modals is a prohibitory obligation “not to do”, or the “duty not to perform or refrain from performing or acting” (Matulewska 2010: 85). As shown in Figure 5 below, there are 94 occurrences of prohibition with three potential sub-meanings of unlimited prohibition, conditional prohibition and external prohibition. Out of the total 617 modal occurrences in the selected corpora, there are 58 (62 %) exponents categorized under unlimited prohibition, 36 (38 %) under conditional prohibition and zero occurrence (0 %) of modals expressing external prohibition.
18.104.22.168 Modals expressing unlimited prohibition
As regards the occurrences of modals expressing unlimited prohibition, the following were noted as the most common out of the 10 types observed: shall not+verb (19), shall not+be (17) and will not+be (9). As shown in Table 3 below, the corpora made use of a predominantly “modal+not” construction to show prohibition rather than modals intertwined between modifiers, and nouns, or conjunctions as in cases of “no+noun+modal+be” or “neither+noun+ modal+be” among others.
It was noted that in expressing prohibition, a clear and precise use of prohibitory “not” is more preferred to avoid and prevent misappreciation or confusion, and to ensure the absolute prohibition to perform which is binding no matter what the situation is, as in the following instances:
Contract 5- Insurance Contract:
Indebtedness shall not exceed the Cash Value of the Policy.
Contract 10- Telecommunications Service Contract:
The handset or reward that I have obtained under the Program Offer shall be final, and shall not be eligible for any brand exchange or handset/reward exchange of the same brand, unless I agree to pay for any applicable charges to cover costs of exchange.
Contract 3- Airline Service Contract:
In these cases, the Airline will not charge the Passenger the fare difference if the rebooked flight is within thirty (30) days from the original departure date.
These unlimited prohibitory modals occurred mostly in all contracts except Contracts 6 and 7, which take the nature of contracts of adhesion, where only one party is active in preparing the document, with the other party either accepting or rejecting it. As contracts of adhesion, the party-offeror/s have the opportunity to impose obligations or prohibitions, with the party-acceptor/s either acceding to it or otherwise. In contrast, Contracts 6 and 7 (Construction Contracts), being bilateral contracts, are more lenient and non-prohibitory.
22.214.171.124 Modals expressing conditional prohibition
As shown in Table 4 below, the most commonly used modals under the sub-meaning of conditional prohibition are the following: will not+be (11 occurrences), cannot (8 occurrences), shall not and may not (both with 4 occurrences), all appearing in Contracts 1 to 5 and 7, as contracts of adhesion. While Matulewska (2010) did not include cannot as a modal showing conditional prohibition, nor unlimited prohibition, it was deemed necessary to include such as they were observed in the corpora to indicate a conditional prohibition which is dependent upon the happening of a circumstance or event.
A conditional prohibition is also a contractual prohibition, just like unlimited prohibition, except that the former is understood as the prohibition to perform only in specific circumstances, and may not be totally absolute until the happening of the event or circumstance, as in the following examples:
Contract 5- Insurance Contract:
The Accident Benefit provided under this Policy will not be paid if your death is a direct or indirect result of one or more of the following causes:
Contract 2- Employment Contract:
If the ship is outside the Philippines upon the expiration of the contract, the seafarer shall continue his service on board until the ship’s arrival at a convenient port and/or after arrival of the replacement crew provided that, in any case, the continuance of such service shall not exceed three months.
Contract 3- Airline Service Contract:
Promotional Fares and Regular Fares with promo code discounts and the applicable fees, taxes and surcharges are non-transferable, non-reroutable, non-refundable and may not be stored in a Travel Fund but may be rebookable (except to another promotional seat after the sale period).
Contract 3- Airline Service Contract:
Promotional fares cannot be refunded unless required under existing government regulations.
126.96.36.199 Modals expressing external prohibition
An external prohibition inhibits or forbids a party from doing or performing a certain act and it arises not from the contract, nor from the parties in the contract, but from statutory instruments or from other factors (non-contractual prohibition).
There were zero occurrences of prohibitory modals and it can be inferred that because all laws are deemed written in every contract, superfluity did not find its place in the subject corpora. These laws are deemed included in the written contract, even if these prohibitions from statutory instruments are not explicitly provided for. The non-inclusion of these prohibitions does not make them non-prohibitory and non-binding to the parties. In fact, a law is still a law, regardless of its existence as an explicit provision in a contract, and it cannot be disregarded, as in the following instance:
Contract 2- Employment Contract:
The Labor Arbiter shall not allow any monetary claims on an illegal dismissal case beyond 4 years.
This is no longer necessary to be expressly stipulated because Article 297 of the Philippine Labor Code is explicit on the prescriptive period of such instance. Another example below is when a certain stipulation may not automatically be binding upon the third person/s because they were not made party to a contract.
In a Contract of Loan between two natural or juridical persons other than the bank:
A commercial bank shall not assist the parties in case of insolvency.
A party, to be bound, must consent to any obligation imposed, or prohibition made compulsory. Hence, a non-party may not be compelled to perform an act it did not oblige itself to perform, unless the law provides.
Thus, it is not uncommon to find external prohibitory modals because of these peculiar circumstances.
The third meaning expressed by a modal is contractual permission or “the right to which the party to the contract is entitled or an authorization to exercise one’s rights” (p.85). As shown in Figure 6 below, there are 217 occurrences of permission with unlimited permission accounting to 71 (33 %) incidences in the corpora. The other occurrences accounted to 128 uses (59 %) on conditional permission and 18 incidences (8 %) of external permission.
Of the three potential sub-meanings of permission, the conditional permission is most commonly used at 59 % of the time. The unlimited permission is second at 33 % while the external permission is the least common at 8 %. Table 3 presents the exponents used with these meanings. The modals of permission found in the seven data except Contracts 7, 8 and 10 are may, shall be entitled to, shall have the right to, will allow, will be entitled to, and can.
188.8.131.52 Unlimited permission
Table 5 presents the occurrences of modals expressing unlimited permission. Out of the 71 modals used, modal may was used 64 times accounting to 90.41 % incidence. Contract 3- Airline Service contract had the most number of the uses of may totaling to 45. Contract 2- Employment Contract had the most number of occurrences of permission modals may, in respect to an application of discretion in consideration of the rights of the workers, and seafarers as in the sample contract. In fact, this contract contains all the 5 occurrences of the exponent shall be entitled to, in observance of the parties’ rights, benefits, and entitlements.
Contract 1 (Credit Card Contract) and Contract 2 (Employment Contact) also had uses of the modal may at 9 and 7, respectively.
In determining whether a contractual provision is mandatory or directory, consideration must be taken of the probable consequences that may result from one construction or the other (Diokno v Rehabilitation Finance Corporation (91 PHL 608), and cited in Funa, D. (2011). So, if the parties have no substantial rights depending on it, and no injury can result from ignoring it, and the purpose can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the provision will generally be regarded as directory, or as an unlimited permission. In the words of Matulewska (2010), an unlimited permission is a right which may be exercised no matter what the situation is but it is not necessarily obligatory, nor prohibitory, but one of permission as when said right, benefit, or entitlement should be granted or exercised. This is shown in the sentence below:
Contract 1- Credit Card Contract,
The privileges of the CARD may be terminated by XXX at any time and for whatever reason or cause without need of prior notice to Cardholder and the Cardholder agrees to surrender his/her CARD upon demand to any authorized BPI representative.
In his study, Matulewska (2010) cited expressions of unlimited permission other than the modal may which also appeared in the corpora such as will allow, will be entitled to, and shall have to right to. The other exponents will permit, to be able to, to have the right of, shall be entitled to, and shall be allowed to did not appear in the Philippine contracts under study. The following illustrates the use of the abovementioned exponents other than may:
Contract 5 – Insurance Contract:
Except for your Initial Premium, we will allow a Grace Period of Thirty-One (31) Days after the premium due date to pay your premium.
184.108.40.206 Conditional permission
The conditional permission modals which are used to pertain to rights which may be exercised only under specific circumstances or upon the happening of the event or condition appeared in all contracts except Contracts 6, 7 and 8.
As shown in Table 6 above, the most frequently used conditional permission modal is may with 103 occurrences, as exhibited in the following example:
Contract 10- Telecommunications Service Contract:
My personal Information may be disclosed to (a) third parties to whom certain Globe functions are being outsourced to, (b) law enforcement agencies, government agencies, courts or external advisors where permitted or required by law, or (c) financial institutions, credit bureaus or similar organizations tasked to provide credit reporting.
Also appearing in the corpora are conditional permissions can, shall be entitled to and shall have the right to which provide for the necessity to respect the rights, benefits, and entitlements of the party to the contract. It is likewise a conditional permission, which is contingent upon the happening of the event or condition, as illustrated in the following examples:
Contract 1- Credit Card Contract:
The total credit limit, which can be used for regular purchases and Special Installment Plan (S.I.P.), represents the maximum outstanding balance that a Cardholder and his/her supplementary cardholders are allowed to share at any given time subject to the security requirements and credit card management requisites which may be reasonably imposed by XXX from time to time (the “Credit Limit”).
Shall be entitled to
Contract 2- Employment Contract:
When a seafarer is hospitalized and has been confined for at least seven (7) consecutive days, he shall be entitled to a compassionate visit by one (1) family member or a requested individual.
Shall have the right to
Contract 4 – Car Loan Contract:
The Payee/Mortgagee may terminate any loan or other credit accommodation granted on the basis of said document/s and shall have the right to demand immediate repayment or liquidation of the obligation.
Modal can which appeared 16 times has also been considered to express conditional permission when linguistically, it shows ability, as in the following example:
Contract 1- Credit Card Contract:
The total credit limit, which can be used for regular purchases and Special Installment Plan (S.I.P.), represents the maximum outstanding balance that a Cardholder and his/her supplementary cardholders are allowed to share at any given time
220.127.116.11 External permission
The third type is external permission, which is understood as a right that may be exercised beyond the control of the contracting parties. It is a non-contractual permission, and may also be based on statutory instruments. It is external because it is dependent upon the factors outside the four corners of the written contract. As shown in Table 7, only two modals may and shall (plus be entitled to) were used totaling to 18 uses. The Contract 4- Car Loan had the most number of exponents with 8 while only Contract 2- Employment Contract made use of shall (plus be entitled to) with two occurrences.
The modals expressing external permission are seen in the following:
Contract 9- Cable Service Contract:
DCS shall not be liable for any cable system problems that may arise after the unauthorized connection/extension/transfer, even if caused by company equipment.
Shall be entitled to
Contract 2- Employment Contract:
The seafarer traveling by air to join a ship or on repatriation shall be entitled to the normal free baggage allowance offered by the airlines.
Also worth noting is the use of modal may to show possibility which was not indicated in Matulewska’s (2010) study. The following provisions pertain to the use of the modal to describe or modify but not to show permission:
Contract 4- Car Loan Contract:
The Mortgage herein constituted secures the faithful and exact compliance by the Maker/Mortgagor of each and all of the terms and conditions set forth herein including those in the reverse side of this page and attached Schedules, as the case may be.
Table 8 shows the summary of all the modals and non-modals used in expressing deontic meanings of obligation, permission and prohibition. Out of the 627 modals/non-modals utilized, those expressing obligation had 316 uses or 50.4 % incidence that accounted for more than half of all the meanings expressed. Meanwhile, modals/non-modals conveying permission consisted of 217 or 34.6 % incidence while 94 uses or 15 % occurrences for prohibitory modals.
With regard to the obligation meaning (316), modals/non-modals carrying the conditional sub-meaning had more than half of the total obligation exponents with 184 frequencies or 58.23 %. The same is true for the conditional sub-meaning having 128 or 58.99 % or more than half occurrences of all the permission meaning occurrences (217). Likewise, the unlimited prohibition accounted for 58 or 67.44 % or more than half of all the prohibition meaning frequency.
3.2 Shall uses
The figure shows the frequency of shall uses in the 10 contracts (inner) as compared to the total number of modals and non-modals used in the corpus data. Out of the 979 modals/non-modals used noted, a total of 502 shall uses was accounted. This accounted for more than half or 51.27 percent occurrences of shall in all the data. Contract 6- Residential Building Construction Agreement posted the highest number of shall occurrences with 33 uses of shall out of all the 45 modals/non-modals used. This followed closely by Contract 8- Service Agreement on Photocopying Services with 30 out of 41 or 73.17 %. These findings validate earlier studies done like Coulthard and Johnson (2010), Kakzhanova (2013), Stygall (2010) and Tenedero (2015). In fact, among all the modals, shall is considered the most forceful as it suggests strong determination and obligation for an action to be done. It is a language feature of directives, which are statements that leave the addressee no other option but to follow (Trosborg 1995). Still, As shown in Figure 7 below, complication arises when the use of shall, aside from the covenant, is wrong.
3.2.1 Correct use of shall as covenant
The table above presents the correct use of shall vis-à-vis the total number of occurrences of shall in the Philippine contracts under study. Out of the total 502 shall incidence in all the 10 contracts, only 148 or 29.5 percent accounted for the correct usage of this most used as well as misused modal (Garner 2011). Of the 10 contracts, Contract 9- Cable Service Contract had the highest percentage of correct use of 11 out 22 or 50 % while Contract 3-Contract of Carriage incurred the lowest correct usage with 7 out of 32 or 21.9 %. The following extracts present the use of the modal shall as a covenant either as an obligation or prohibition:
Covenant (obligation) from Contract 1- Credit Card Contract:
The Cardholder shall pay to BPI annual membership fee, in such amounts as may be fixed by BPI, to entitle him/her to the privileges of membership and the use of the CARD.
Covenant (prohibition) from Contract 4- Car Loan Contract:
The Maker/ Mortgagor shall not question payments or advances actually made by the Payee/ Mortgagee by virtue of this condition and now and henceforth renounces all protest or defences, against said payments.
The samples above depict the correct use of shall as covenants because the parties involved (the Cardholder in Contract 1 and the Maker/Mortgagor in Contract 4) are followed by verbs which express covenant as obligation (pay) and prohibition (question).
Referring back to Table 9, out of the 502 uses of shall in all the 10 contracts under study, 354 (502–148) or 70.5 % account for the problematic uses of shall. The following table presents the incorrect uses of shall, namely, to present a statement of discretionary authority or permission, a present tense declaration, a provision purporting to bind a non-party, and a condition.
Table 10 indicates that out of the 10 contracts, Contract 2- Contract of Employment of Filipino Seafarers, has the most number of inaccurate occurrences of the use of shall. Further, Table 2 also indicates that from the inaccurate uses of shall, present tense declaration has been the most evident as there are 131 occurrences, followed by condition with 87 occurrences, statement of discretionary authority comes third with 77 occurrences, and a provision purporting to bind a non-party comes last with 59 occurrences.
Shall Used as a Present Tense Declaration:
Contract 8- Service Agreement for the Photocopying Services:
All accounts shall be payable monthly to the SECOND Party within fifteen (15) working days from the date indicated in the invoice.
Contract 3- Contract of Carriage:
The 20% discount shall be applicable only for fares and for payment over the counter and not for online booking.
Statement of Discretionary Authority or Permission from the Philippine Contracts:
Contract 1-Credit Card Contract:
Upon acceptance of Cardholder’s application, XXXXX, at its sole discretion, shall grant a credit limit to the Cardholder expressed in local currency (Philippine Pesos) which is the maximum amount available for use.
Provision Purporting to Bind a Non-Party:
Contract 9- Service Contract
The Account number and XXXXX number (s) specified above shall be bound by the terms and conditions of this Program.
It can be found that conflicting assertions as to the uses of shall as covenant (consisting of obligation and prohibition) by Stark (2007) and in Matulewska’s (2010) study are evident in the findings. As shown in the previous discussion, with regard to unlimited prohibition, Matulewska notes the following expressions relating to shall aside from Stark’s ruling that this modal must be immediately preceded a party and followed by a verb (shall not+verb): shall not (be), shall+no+__+be, shall not be entitled to, neither noun shall verb. With conditional prohibition, the use of shall not (be) is acceptable as the use of shall not+verb is. Likewise, the modal shall is used to express the deontic meanings of conditional permission (shall be entitled to, shall have the right to) and external permission (shall be entitled to).
A total of 619 modals and non-modals were utilized in conveying deontic meanings (316 for obligation, 217 for permission and 86 for prohibition). Out of these 619 modals/non-modals, 148 or 22.65 % occurrences of shall as covenant (obligation and prohibition) were noted. It is interesting to note that 354 additional incidence of shall, not categorized under any of the deontic meanings were noted. As a whole, there were 502 shall uses out of the total 973 (619+354) modals and non-modals used in the corpus of this study.
The findings of this study reveal the concurrence or likeness in the use of modals in the Philippine codified, established or consolidated laws promulgated decades back, if not centuries ago. In this study’s subject corpora, modals/non-modals expressing obligation had the most number, followed by those expressing permission, with prohibitory modals as the last. In fact, the same order has also been found in the two most common statutes enforced in the country today – the Revised Penal Code (Act 3815) approved in 1930 with 1105 occurrences of obligatory modal shall, 272 occurrences of permissive modal may, and 56 occurrences of prohibitory modal shall not; and the New Civil Code (Republic Act 386) which took effect in 1950 with 1741, 1162, 208 occurrences of shall, may, and shall not, respectively. No less than the 1987 Constitution also had the same findings with 631, 151, and 54.
By analogy, it has been observed that the framers of the Philippine Constitution of the said codified legislatures called statutes, and of the written contracts in this study’s corpora gave more preference to impose a duty or obligation than to provide for some discretion or leeway. This breathes life to the principle of obligatory force in contracts which makes the duty and obligation binding between/among the parties, and the non-observance of which may give rise to a lawful action. It has been meted however that negative obligations or those that sound adversarial and impose prohibitory statements are the least considered.
Consequently, the results of this particular study are likewise significantly comparable to the study of Bondi and Diani (2010). Findings in both studies show the dominant use of the modal shall in the examined contracts. Similarly, the modals/non-modals of obligation in the present study were also found to be the most commonly used words. Modals of permission and prohibition were also evident, but employed parsimoniously.
A central finding of this study is the presence of shall. While Stark (2007) identifies the only valid use of shall to be that of a covenant (expressing obligation or prohibition), an overwhelming number of the incorrect uses of shall permeated in the contracts under study. On the other hand, Matulewska (2010) presents that the deontic meanings not only of obligation and prohibition (covenant) but also permission are realized through the different shall uses. In this case, differing views on the employment of shall in contracts have been uncovered. Some Philippine legal cases, as results of such imprecision in the use of modals particularly shall confirm the danger of employing such vagueness. As cited in the case of Diokno v Rehabilitation Finance Corporation (91 PHL 608), and by Funa (2011), shall may be construed as may when so required by the context or by the intention of the statute or parties, and vice versa. Moreover, in determining whether a statutory requirement is mandatory or directory, consideration must be taken of the probable consequences that may result from one construction or the other. So If the parties’ substantial rights depend on it, and no injury can result from ignoring it, and the purpose of legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as directory. But if not, it will be mandatory. Alcantara (2011) states that the tendency has been to interpret the word shall and may depending on the context or the reasonable construction of statutes, or of contracts, in which they are used.
In addition, there are instances where the word may can be construed to be obligatory when it is necessary to accomplish the manifest purpose of the legislature or of the contract. According to Matulewska (2010), a permission may be unlimited or that right which may be exercised no matter the situation (a contractual permission), conditional or that right which may be exercised only under specific circumstances (also a contractual permission), and external or that right which may be exercised under statutory instruments (a non-contractual permission).
Agpalo (2009) even posited that while the ordinary interpretation of the words shall and may may be resorted to as guide in the ascertainment of the mandatory or directory character of statutory provisions, it is in no wise absolute and inflexible criterion in the vast area of law. Each case shall be regarded in the light of surrounding circumstances and purpose, and shall be looked into depending on the true intention of the parties in light of justice and equity.
Although lawyers and other specialists alike concur that this is most misused word in all of legal language, yet the most overused and grossly misused in contracts, they have differing perspectives about the word shall. The other view posits the disciplined use of shall (Adams, 2011) than by completely eliminating its use. For instance, some writers distinguish mandatory and directory regulations- regulations which do not improve sanctions for breaching. These writers suggest that shall should still be used to impose mandatory obligations and modal must should be used for directory regulations (p.34). While others believe that since ordinary citizens do not even use shall in ordinary conversations, the logical thing is to completely scrap its usage and change into must. Other drafters contend with this idea, as must can be viewed as too strict, especially in contracts between parties which are trying to achieve mutual cooperation and respect.
In establishing the obligatory, permissibility and prohibitory forces in contracts, this study has demonstrated that a contract, described as a binding agreement between two parties, must possess the ability to meet the legal requirements. These include the elements of offering, acceptance, consideration, valid purpose and parties capable to contract. Tolentino (2002) espouses:
A contract has three characteristics– obligatory force, mutuality, and relativity of contracts. By the obligatory force of contracts, it constitutes the law as between the parties. By its mutuality, its validity and performance cannot be left to the will of the parties. And by its relativity, it is binding only upon the parties and their successors (p. 406).
In order for a contract to be evaluated as effective, there are traditional grammar conventions in the drafting and/or review of contracts which keep on progressing with change in the law and practices. Each contract should clearly lay out the respective obligations of the parties with provisions and remedies aside from merely reflecting the parties’ intention to be involved or engaged into a legal relationship. Since contracts are drafted to convey duties, permission, prohibitions, prediction, volition and others, the presence of deontic modal verbs and/or non-modal verbs prove to be helpful in expressing decisions about what parties think, what they know and how strongly they adhere to each other’s beliefs. In the same way, contracts also establish a coherent footing and framework. As what Sangal (2012) upholds, “A contract shall be structured in such a way that the purpose behind it is lawfully positioned, performed, and protected!”
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About the article
Published Online: 2016-12-08
Published in Print: 2016-12-01