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.
The phrase almost looks like an admission that it is not a contractual obligation but instead could be somewhere in the territory of:
a. we intend to do X; or
b. we can’t be too precise about it, but we foresee that we will do X; or
c. we have a moral duty to do X (peer pressure kind of thing)
c. we acknowledge that you will be cross if we don’t do X.
I agree that the phrase should be avoided in contracts.
I often see the use of expectation language in employee handbooks where the employee wants to maintain the at-will status of the employee and avoid creating an employment contract. This allows the employer to establish its standards and policies while not creating a contract with the employee. The more I think about it, the more I think it might be better to use language of policy in employment handbooks rather than expectation language.
I’ve seen this and similar language in aspirational drafting such as, like in an employment contract, where expectations are stated, they are “sort of” firm, but they’re not “hard” agreements. I see them in service agreements (the industry jargon is SLA-service level agreements) where a target might be strived (striven?) for, and failing to reach it might not be a breach, but it may be a condition giving rise to specific rights. “Finance company will be expected to credit-decision any transaction less than $x same business day.” Yadda yadda.
There is another category of language where a lot of this kind of language comes up. Where the language is not intended to be a hard agreement–e.g., relationship agreement where either party can terminate at will–the real remedy the parties rely on is the termination, and the contract will often be full of this kind of language because “best efforts” just doesn’t cut it, and the parties want to say what they want to say, but softly. How do you handle this? I call this “hand-waving” since the language itself is really a kind of prose, not contract drafting, and is there really for “optics.”