“Will Not Be Required To” as an Alternative to Conditions

I’ve already had occasion to consider the distinction between obligations and conditions. (Click here and here.) Well, here’s another thought: If satisfaction of a condition would trigger an obligation on the part of another party, then instead of using a condition to express that concept you may want to use languagage of discretion using will not be required to. (For more about is not required to, see MSCD 3.62.)

Consider the following three examples. (I refer to the first as a “pseudo-obligation” because although it reads like an obligation, if quizzed on the matter the drafter would probably fess up to not having planned on drafting an obligation.) Which do you prefer, the second or the third?

Pseudo-Obligation

The Consultant shall submit to the Company no later than 90 days after termination of any Project a claim for reimbursement of expenses that the Consultant incurred in connection with that Project.

Condition

In order to be reimbursed for expenses it incurs in connection with any Project, the Consultant must submit to the Company no later than 90 days after termination of that Project a claim for reimbursement of those expenses.

Language of Discretion

If the Consultant fails to submit to the Company no later than 90 days after termination of any Project a claim for reimbursement of expenses the Consultant incurred in connection with that Project, the Company will not be required to reimburse the Consultant for any such expenses.

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.