Another Categories-of-Contract-Language Oddity: “Will Be Expected To”

There seems to be no end to the bizarro verb structures that drafters opt for.

Today I saw the following in a contract: “Consultant will be expected to perform the Services.” I said to myself, WTF! I promptly went on the SEC’s EDGAR system, where I had no trouble finding instances of will be expected to. It occurs in 289 “material contracts” filed in the past year, so it’s not commonplace, but it’s not a rarity either. And inevitably, you also find shall be expected to.

Either flavor of be expected to occurs most often in employment letters using the second person:

As an employee of Yahoo!, you will be expected to abide by the Company’s policies and procedures including, but not limited to, Yahoo!’s human resources policies and Yahoo!’s Code of Ethics.

But here are some extracts from standard business contracts:

The MCO will be expected to have an interface that allows receipt of these electronic submissions.

In this role, Employee will be expected to lead the development of the business through acquisitions and their successful integration … .

The Executive shall perform her duties principally in the New York City metropolitan area, and she will be expected to perform her duties hereunder for approximately 48 weeks per each 52-week period.

To the extent that Participating Employer contributions are made in Stock, the Trustee will be expected to retain such Stock.

To the extent practicable, the Participant shall be expected to permit whatever medical examinations are necessary for the Recordkeeper to make its determination.

Suleski shall be expected to travel if it is advisable or necessary to meet the obligations of Suleski’s position.

It is the parties’ intention that Executive shall not be employed on a full time bases but instead shall be expected to average approximately thirty (30) hours per week over the Term of Employment.

Employee shall be expected to attend and contribute at all meetings of the Board.

You also find will be expected and shall be expected used with a noun:

Payment will be expected within thirty (30) days of receipt.

It might be appropriate to use will be expected to if you’re referring to actions by a nonparty. But it seems gratuitously obtuse to speak in terms of expectations with respect to conduct by the parties. If you want a party to behave a certain way, impose on that party an obligation to behave that way. Why be mealy-mouthed and say instead that they’re expected to behave that way? Perhaps drafters think that will be expected to is more polite than using shall or must, but that sort of pussyfooting is at the cost of clarity.

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.