About the author
Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.
You’re poking this hound with a stick again. The fact that all the synonyms for ‘shall’ are language of performance is a clue that so is ‘shall’. That’s not to say that ‘shall’ is not language of obligation, but rather that language of obligation is a subset of language of performance. ‘Acme shall’ means ‘Acme hereby takes on a duty to’. The problem with all the alternatives to ‘shall’ is not that they’re performatives and ‘shall’ isn’t, but that the variants do the job less concisely. And if we’re mopping up all needless variants of ‘shall’, let’s get rid of ‘hereby assumes all obligations under’ in favor of ‘shall perform all [of Acme’s] obligations under’. Have fun in Chile!
I get your point about “hereby assumes all obligations under”, but that’s a separate analysis that I’ll save for another day …