Dual Verb Structures: “Is and Will Be”

You lucky people, here’s another in my sporadic posts on dual verb structures! This time, we have under the spotlight is and will [or shall] be. As with verb structures generally, you can do better than is and will be.

Awkward Grouping

One explanation for use of is and will be is that the drafter structured things awkwardly. Here’s an example:

This example uses two passive-voice verb structures. The first, governed, relates to language of policy that applies at signing, whereas construed relates to future conduct. It would make sense to use is with the first and shall be (or, consistent with my categories-of-contract-language framework, will be) with the second, but the drafter opted to make it seem that is and shall be both apply to each verb, which doesn’t make sense. (But in this case, there’s also a bigger fix: delete construed. It’s redundant.)

Unaware that Present-Tense Language of Policy Operates in the Future 

Consider this example:

This Agreement or any provision hereof may only be changed, amended or modified pursuant to Section 6(c) hereof with the Consent of the Stockholders, it being the specific intention of the parties hereto that each of the Company’s stockholders is, and shall be, a third party beneficiary of this Section 6(d) with the same right and power to enforce this Section 6(d) as the other parties hereto.

It would be sufficient to use just is—if you say (using language of policy) that someone is a third-party beneficiary, that applies going forward, and not just at that instant.

The same goes for this example (although you should delete the sentence, as time is of the essence is unhelpful; see this 2009 blog post):

Time is and shall be of the essence of this Lease.

And this example:

The Employee acknowledges that the Confidential Information is and will be the sole and exclusive property of the Company.

Combining Current Facts and Future Facts

Drafters also use is and will be if a provision applies at the time of signing and in the future. But if you say something will be, you’re in effect making a prediction—you’re stating what I call a “future fact.” There’s always a better way to express whatever’s going on. (See this 2020 blog post.) And when you combine future facts with the simple present, the result is usually enough of a mess that you’re better off doing something entirely different.

Consider this example:

All information with respect to the Pledged Collateral set forth in any schedule, certificate or other writing at any time furnished by Pledgor to Lender, and all other written information at any time furnished by Pledgor to Lender, is and shall be true and correct in all material respects as of the date furnished.

It’s unnecessary to say that disclosed information is accurate: if facts disclosed in a contract are inaccurate, remedies are available. It would make more sense to say what happens if information is found to be inaccurate.

In the following example, it would be simpler to use may and express elsewhere the implications if at any point the services in question are no longer available:

The Authorized Participant represents, covenants and warrants that, as of the date of execution of the Authorized Participant Agreement, and at all times during the term of the Authorized Participant Agreement, the Authorized Participant is and will be entitled to [read may] use the clearing and settlement services of each of the national or international clearing and settlement organizations through which, in compliance with the Procedures, the transactions contemplated hereby will clear and settle.

And here’s a third example:

DIC represents and warrants to VIVAKOR that a minimum of Four Hundred Forty-Four Thousand Three Hundred Eleven (444,311) metric tons of contaminated soil with an oil content of five percent (5%) or more is and will be available for processing at the RPC plant facilities during the Term of this Agreement.

Is the total amount available now? Then will be is unnecessary. Is less than that available now? Then say what’s available now and impose on DIC an obligation to make the remainder available in accordance with some schedule.

(Want more on dual verb structures? Of course you do! See the first seven posts here. New to my categories-of-contract-language framework? Then go here for my quick-reference chart.)