LEGAL PRINCIPLE: INTERPRETATION OF STATUTES – Mandatory and Directory Provisions – The Word “Shall” – Construction of “Shall” in Pre-Action Notice Provisions
PRINCIPLE STATEMENT
It is settled that the word 'shall', when used in an enactment is capable of bearing many meanings; it may be implying futurity or implying a mandate or direction or giving permission; in the present case, we are concerned with whether it has been used in a mandatory sense or directory sense; if used in a mandatory sense, then the action to be taken must obey or fulfill the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfill the directive substantially.
RATIO DECIDENDI (SOURCE)
"It is settled that the word 'shall', when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission. In the present case, we are concerned with whether it has been used in a mandatory sense or directory sense. If used in a mandatory sense, then the action to be taken must obey or fulfill the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfill the directive substantially."
EXPLANATION / SCOPE
This establishes framework for interpreting “shall” in statutes. “Shall” meanings: (1) Futurity: Indicating future tense—”will happen”; (2) Mandate/direction: Commanding action—”must do”; (3) Permission: Allowing action—”may do”. Here concerned with: mandatory versus directory senses. Mandatory “shall”: Must obey exactly—strict compliance required, no discretion, and precise fulfillment necessary. Directory “shall”: Should obey substantially—substantial compliance acceptable, purpose matters more than form, and exact fulfillment not essential. Determining which: Courts examine: statutory context, provision’s purpose, consequences of non-compliance, and legislative intent. This serves: flexible statutory interpretation, recognizing “shall” isn’t always absolute, and applying appropriate compliance standards. Effect of characterization: Mandatory: Non-compliance voids action—must comply exactly or fail. Directory: Substantial compliance suffices—assess if purpose achieved despite imperfect compliance. Why distinction matters: Some requirements are essential (mandatory—exact compliance), others are procedural (directory—substantial compliance). Courts cannot: automatically treat all “shall” as mandatory, ignore context and purpose, or apply uniform interpretation regardless of provision. Must assess: each provision’s context, intended purpose, and appropriate compliance standard. This prevents: hypertechnical enforcement of directory provisions, treating all “shall” identically, and defeating actions for immaterial non-compliance. The framework enables: contextual interpretation, appropriate compliance standards, and substance-focused application of statutory requirements.