Richard Shane Hammish
The usage of the terms may and shall in statutory provisions have always caused ambiguity in the statutes of all countries that use English as the language to codify their laws. It is a well – known belief that the word may in a provision of a statute denotes that the provision is only ‘directory’ in nature, and the word shall has an ‘obligatory’ meaning.
This research is strictly confined to critically analyse the usage of the words ‘may not’ in section 12 of the Indian Contracts Act, 1872. The reason to take up this research is the usage of directory (optional) words ‘may not’ in section 12 of the Contract Act, where the mandatory (obligatory) words should have been used. Section 12 seems to be not nicely worded and it causes difficulty in interpreting its actual meaning.
We would discuss the determining factors to construct whether a provision is imperative or discretionary. This research makes its fullest attempt to find out whether the legislature really intended to make the provision under analysis prohibitory. We also discuss whether the usage of may not makes this provision mandatory. It also suggests an alternative phraseology that the legislature could have used in the place of the current language.
THE PROVISION UNDER ANALYSIS:
A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. (Section 12, Contracts Act, 1872)
Section 12 of Contracts Act, 1872 provides one of the conditions to make a valid contract, viz. Sound mind. This provision states when a person can be said to be of sound mind to make a contract. According to the provision, if a person is capable of understanding the contract and forming rational judgments, he is of sound mind. It further states that a person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.
The problem arises in the last paragraph of the section which must prohibit a person who is usually of sound mind, but occasionally of unsound mind from entering into a contract when he is of unsound mind. But, the words in the provision is the ‘directory’ may in place of a ‘mandatory’ term.
It is a very well – known teaching in law schools that may is not a mandatory term. There are even statutes enshrining this idea. If we go by this teaching, we’ll have to understand that the above provision is merely directory in nature.
We’ll then have to assume that a person who is delirious from fever and cannot understand the terms of a contract or form a rational judgement, may or may not enter into that contract. On the contrary, even a layman can understand the prohibitory nature of this provision that a person of unsound mind cannot enter into a contract irrespective of the fact that he is usually of sound mind.
The word may is sometimes used as must. In the final analysis, it is always a matter of construction of the statute in question.[i] That being the case, we are wanting to know if the legislature really intended to make this provision obligatory or it is discretionary for the parties to a contract.
DETERMINING FACTORS FOR A PROVISION TO BE MANDATORY OR DISCRETIONARY:
In many cases, courts have brought out certain factors which determine whether a provision is directory or mandatory. We are obliged to test the above provision with all those determining factors. The following are the factors to be considered:
- Language or Phraseology of the provision
- Intention of the legislature
- Purpose behind the statute
Language or phraseology of the provision:
It is because of the language of this provision that this research is conducted. Ordinarily, the words shall and must are mandatory & the word may is directory, although they are often used interchangeably. It is generally presumed that the words are intended to be used in their natural meaning.[ii]
If we go by the literal meaning of the word may, it becomes permissive for a drunkard to enter into a contract when he is not in a position to understand the terms of contract.
Though in general sense may is enabling or discretional, the connotation is not inelastic and inviolate.[iii]
It is well settled that the use of may in a statutory provision does not by itself show that the provision is directory in nature. In some cases the legislature may use the word may as a matter of pure conventional courtesy, and yet intend a mandatory force.[iv]
Therefore, we believe that the use of the word may in this provision should also have a mandatory force. Courts have also ruled that the language employed cannot be a sure index, and it is impossible to lay down a hard and fast rule.
Courts have also opined that the presumption that the legislature used obligatory or directory terms in the primary sense is a rebuttable one. The literal meaning and ordinary usage of discretionary and imperative terms can no longer be of any worth when the literal meaning leads to vague and unreasonable results.
Interpreting the above provision with the literal meaning of may might give way to unreasonable and absurd results, i.e. it will give way for a person of unsound mind to enter into a contract.
Usage of Negative Injunction:
It must be noted that the provision under analysis uses a negative injunction i.e. may not. It is a general rule that the usage of negative injunction or prohibitory word makes a provision mandatory.[v] And so, we can assume that this provision mandatorily prohibits drunkards to not enter into a contract when they are not in a position to understand the terms of contract.
But, it is also noteworthy that not all provisions with the negative injunction are mandatory. Provisions framed in negative language have, in some cases, been construed as merely directory.[vi] There is no general rule that an enactment expressed in negative and prohibitory language must be considered as absolute.[vii] Therefore, if we assume that the provision under scrutiny is mandatory, we may go wrong.
The Bombay High Court in D A Koregankar v. S O Bombay[viii] suggested the legislature incorporate in a statute a provision mandatory in character by expressing it in the form of a positive injunction rather than in the form of a negative injunction. The legislature could have very well used a positive word so as not to create any absurdity as it has created in the present provision.
Hence, Section 12 of the Contracts Act, 1872 fails in the Phraseology test.
Intendment of the Legislature:
It is well known that the intention of the legislature will control and prevail over the literal meaning of the words. The intendment of the legislature depends on several aspects like context, subject matter and of the provision, nature and design of the provision, consequences that would follow from construing the provision in one way or the other.
As we all know, an obligatory provision must be construed strictly and a discretionary provision can be construed liberally.
The table below shows how characteristics of mandatory provisions differ from directory provisions.
|Mandatory provisions||Directory provisions|
|Those whose provisions relate to the essence of the thing to be performed or to matters of substance are mandatory.
A provision is mandatory if the omission to follow it renders the proceeding to which it relates illegal and void.
The object in imposing the condition is the maintenance of public order or safety, or the protection of persons dealing with those on whom the conditions have been imposed.
If the non – compliance of a particular provision causes inconvenience or injustice, the provision must be complied with and it is an obligatory provision.[ix]
If the object of the law is defeated by non – compliance with the provision, the provision has to be regarded as mandatory.[x]
Whenever a provision prescribes that a particular act is to be done in a particular manner, and also lays down that a failure to comply with the said requirement leads to a specific consequence, that provision will be mandatory.[xi]
| Those which don’t relate to the essence and whose compliance is merely a matter of convenience rather than of substance are directory.[xii]
A provision is directory, if its observance is not necessary to the validity of the proceeding.[xiii]
Conditions are imposed merely for administrative purposes and no specific penalty is imposed for breach or violation of such conditions.[xiv]
If the non – compliance of a particular provision doesn’t cause inconvenience or injustice, the breach of such a provision can be overlooked provided there is substantial compliance.
If the object of the law is not defeated by the non – compliance with the provision, the provision will be regarded as directory.
If consequence of non – compliance is not provided, it can be said to be directory.[xv]
Now we shall test the provision with the above-mentioned characteristics.
- Does the provision relate to the essence of the subject matter?
Indeed the provision relates to the essence of the subject matter of the Contracts Act. Having a sound mind to understand the terms of a contract is one of the essential components of a valid contract. Therefore, it is vital for a person to be of sound mind to enter into a contract.
- Does the omission of this provision render the proceedings to which it related void?
Yes, if a person is of unsound mind while entering into a contract, the contract will be void ab initio.[xvi]
- Is the object in imposing the condition to maintain the safety or protection of the person on whom the condition is imposed?
Yes, the object of the provision is to protect a person from being abused by the other party to the contract. The other party may very well misuse the unsoundness of mind of the person who is not able to understand the terms of the contract. This provision, by declaring a contract with a person of unsound mind void ab initio, protects the interests of the unsound person.
- Does the non – compliance of the above provision cause inconvenience or injustice?
Yes, if a sick person who is not in a condition to understand the terms of a contract enters into the contract, it will cause inconvenience and injustice to him.
- Will the object of the law be defeated, if the provision is not complied with?
Yes, soundness of mind is one of the components of a valid contract. Unsoundness of mind can defeat the very object of the validity of a contract.
- Does the statute lay down that the failure to comply with the above provision will lead to any consequence?
Yes, if a person who is usually of sound mind and occasionally of unsound mind enters into a contract when he is of unsound mind, the contract will be invalid. Rendering the contract invalid is the consequence of entering into the contract with an unsound mind.
From all the above tests, we can say that section 12 of the Contracts Act 1872 stands positive for being a mandatory provision rather than a directory provision.
The intention of the legislature must ultimately depend upon the context.[xvii] As we went through the context of the provision in light of the above characteristics, we see that the provision is mandatory.
The purpose behind the statute:
The ordinary meaning of language may be overruled to effectuate the purpose of the statute. Courts will apply the construction which best carries into effect the purpose of the statute under consideration.[xviii] There is no doubt for us that the construction which best carries into effect the purpose of the above provision is obligatory construction.
We will also have to consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured by the Act.[xix] If the impugned provision is construed to be directory, it will be absurd and will cause inconvenience not only to the person concerned, but to the very object of the statute.
Where giving the word a directory significance defeats the very object of the Act, may should be interpreted to convey a mandatory force.[xx] As we already saw that if the words may not are given a directory significance, they will defeat the very object of a valid contract. Therefore, may not should convey an imperative force.
USAGE OF MAY NOT PROHIBITS ABSOLUTELY?
Bryan A Garner who is the Editor – in – chief of Black’s Law Dictionary and author of Garner’s Dictionary of Legal Usage says, in his article titled Shall we Abandon Shall, that may not is an apt term to mean that no person is allowed to do something. Here is the excerpt of the relevant part from his article[xxi]:
What about laws stating that “No person shall…”? If shall means “has a duty” or “is required to”, the law will negate a command to do something. Thereby the concerned law will mean – You’re not required to do it (but, by implication you may, if you like). What is meant is to prohibit it altogether – to disallow. Hence, it should be “no person may”. That is no person is allowed to do this.
In 9th edition of Black’s Law Dictionary,
Shall (also) means (along with other meanings) – may
Example: No person shall enter the building without first signing the roster.
When a negative word such as ‘not’ or ‘no’ precedes ‘shall’, as in the above example, the word ‘shall’ often means ‘may’. What is being negated is a permission not a requirement.
If we go by the words of Garner, we can say that Section 12 of Contracts Act is worded correctly. If may not prohibits altogether the act of doing something, the provision clearly achieves its object of prohibiting altogether a person of unsound mind from entering into a contract.
Further, Garner says that it is wrong to use shall not, if the intention is to disallow to do something. When a statute uses shall not to absolutely prohibit from doing something, it actually means may not.
Though Black’s Dictionary is a reliable source, we are not convinced because such semantic subtleties as in the present provisions always bring in complications. It is because of such subtleties that laymen and many lawyers and judges find it difficult to interpret such laws.
AN ALTERNATIVE TERM:
This research is also obliged to presenting an alternative term instead of may not.
According to the Federal Aviation Administration of the United States Department of Transportation, must is the only word to impose a legal obligation on readers to tell them something is mandatory. Also, must not is the only term to say something is prohibited.
The word must remains safe, enlightened choice, because it imposes clarity on the concept of obligation. If you mean mandatory, use must. If you mean prohibitory, use must not.[xxii]
In Lachmi Narain v. Union of India[xxiii], the Supreme Court said that if the legislative intent is expressed clearly and strongly such as the use of must, that itself will be sufficient to hold the provision to be mandatory and it will not be necessary to pursue the inquiry further.
With the above two views in mind along with the opinion of Bombay High Court in D A Koregaonkar v. State of Bombay[xxiv] to use positive injunction rather than negative injunction, we have arrived at an alternative way of wording the provision under analysis.
We would sort to use the word must and not must not or shall not or shall. Our suggested wording of the provision is:
A person who is usually of sound mind, but occasionally of unsound mind, must make a contract only when he is of sound mind.
- The word may also has mandatory purposes, so it is not right to say that section 12 of Contracts Act is phrased badly.
- The term may not is the best prohibitory term as it disallows to do something absolutely.
- The legislature’s intention is undoubtedly to make section 12 of Contracts Act obligatory.
- Therefore, the provision is mandatory.
- But, the usage of may not is not appreciable due to the complications it creates in interpreting the provision. Instead of may not the word must can be used.
- Though the question as to whether a statute is imperative or discretionary does not wholly depend on the phraseology used therein, it does not mean that the language used will be ignored altogether.
The legislature can leave it to the court to interpret whether a provision is compulsory or permissive where it is difficult to avoid using ambiguous terms. But in the present provision, it is obvious for a person to be of sound mind to enter into a contract. That being the case why mustn’t the legislature use a word which is certainly mandatory?
Though it has been ruled in several cases that one provision in a statute may be directory and another provision of the same statute may be mandatory, it has been never ruled by any court that a single provision may be mandatory in one case and directory in another case. So, why mustn’t the legislature use a certain word for mandatory purpose and a separate word for discretionary purpose?
The usage of phraseology to determine whether a statute is mandatory or directory must not be excluded. The legislature doesn’t seem to have taken into consideration the subtleties of semantics while formulating section 12 of Contracts Act. This research suggests the legislature not to use vague and ambiguous words in places where certainly a mandatory word can be used.
- Dr Sanjeev Kumar Tiwari, ‘Interpretation of Mandatory and Directory Provisions in Statutes: A Critical Appraisal in the Light of Judicial Decisions’ (Volume 2 Issue 2) IJLLJ http://ijlljs.in/wp-content/uploads/2015/03/article-on-mandatory-and-directory- pdf accessed 4th May 2020.
- Bruce V Corsino. “What’s the only word that means mandatory? Here’s what law and policy say about “shall, will, may, and must.””. https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/. United States Department of Transportation. March 12, 2020. Web.
- Garner, Bryan A. “Shall We Abandon Shall?” ABA Journal, vol. 98, no. 8, 2012, pp. 26–28. JSTOR, www.jstor.org/stable/23314912. Accessed 7 May 2020.
- Sutherland, Statutory Construction, 3rd Edn, Vol III.
- Crawford, Statutory Construction, 3rd Edn, Vol III.
- Tillman, Nora Rotter, and Seth Barrett Tillman. “A Fragment on Shall and May.” The American Journal of Legal History, vol. 50, no. 4, 2008, pp. 453–458. JSTOR, jstor.org/stable/25734137. Accessed 7 May 2020.
[i] Sidhu Ram v. Secretary Railway Board, AIR 1973 Punjab 383.
[ii] Sidhu Ram v. Secretary Railway Board, AIR 1973 Punjab 383.
[iii] Societe De Taction v. Kaman Engineering Co. Ltd., AIR 1964 SC 558.
[iv] Collector v. habibuladin, AIR 1967 J&K 44.
[v] Corpus Juris, Vol 59, p 1075.
[vi] Corpus Juris, Vol 59, p 1076.
[vii] Dal Chand v. Municipal Corporation Bhopal, AIR 1983 SC 303.
[viii] AIR 1958 Bom 167.
[ix] D A Koregaonkar v. State of Bombay, AIR 1958 Bom 167.
[x] Sharif ud Din v. Abdul Gani, AIR 1980 SC 303.
[xi] Bhavnagar University v. Palitana sugar mill pvt. Ltd., AIR 2003 SC 511.
[xii] Crawford, Statutory Construction, 3rd Edn, Vol III, p 104.
[xiii] Subrata v. Union of India, AIR 1986 Cal 198.
[xiv] Crawford, Statutory Construction, 3rd Edn, Vol III, p 104
[xv] Lila Gupta v. Laxmi Narain, AIR 1978 SC 1351.
[xvi] Johri v. Mahila Draupati, AIR 1991 MP 340.
[xvii] Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 233.
[xviii] Sutherland, Statutory Construction, 3rd Edn, Vol III pp 79 – 80.
[xix] Howard v. Bodington  2 PD 203.
[xx] Collector v. Habibuladin, AIR 1967 J&K 44.
[xxi] Garner, Bryan A. “Shall We Abandon Shall?” ABA Journal, vol. 98, no. 8, 2012, pp. 26–28. JSTOR, www.jstor.org/stable/23314912. Accessed 7 May 2020.
[xxii] Dr. Bruce V Corsino. “What’s the only word that means mandatory? Here’s what law and policy say about “shall, will, may, and must.””. https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/. United States Department of Transportation. March 12, 2020. Web.
[xxiii] AIR 1976 SC 714.
[xxiv] AIR 1958 Bom 167.