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According to the following governmental web page "shall not" should not be used to imply prohibition or imperative, instead "must not" should be used:

Shall and must

Here is an example:

You shall not transfer, assign, or convey Your Account, Contributor membership...

Which is easily replaced with

You must not transfer, assign, or convey Your Account, Contributor membership...

The second version expresses the requirement more explicitly and expressively unlike shall not which according to the web page above might be misinterpreted as not a requirement or explicit prohibition.

However I have two more examples where such simple must not doesn't seem to fit nicely due to grammatical reasons.
(at least so it appears to me because I'm not native English speaker)

The laws of the [Insert Country], excluding its conflicts of law rules, shall govern this Terms

Another example:

But in such a case the exclusions and limitations set forth in this clause shall be applied to the greatest extent enforceable under applicable law.

So my questions is, how should I update those two not so simple examples so that shall and shall be is replaced with must or some other word that is equally strong as must, as appropriate for both grammatical and legal reasons?

Here is a thread from English stack exchange I stumbled upon that discusses this topic however I don't find it as final because of the web page linked above which contradicts those answers and it's unclear how this applies in legal terms:

"Must Not" or "May Not" - which is the most correct

Jen
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metablaster
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1 Answers1

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You've run into an issue that is separate from whether to use "shall," "must," or "will." Certainly people disagree about which of these is best. But whichever you choose, you should do so consistently throughout the work.

The issue you've identified is using the obligation-creating word in a provision that doesn't create an obligation.

Ken Adams recommends to only use the obligation-imposing word when the sentence would make sense if that word were replaced with "has [or have] a duty to" (Kennneth A. Adams, "Making Sense of 'Shall'" (18 October 2007), New York Law Journal).

Instead of "this contract shall be interpreted in accordance...," one could write, "This contract is governed by the laws of [state]."

Jen
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