There’s no end to the suboptimal alternatives to may. Here’s another—is permitted.
You see is permitted to when a party is the subject of the sentence or clause:
… Sponsor is permitted to assign this Agreement in connection with a merger or a sale or transfer of substantially all of its assets …
… neither the Seller nor the Purchaser shall enforce any remedies against the other’s Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Underlying Loans …
Instead, use may. Simple.
A little more subtle is use of is permitted when the subject is an abstract noun:
Termination by Customer is permitted, as to any or all sites, without liability in the case where the connection is out of service for a period of 4 (four) consecutive business days from Ticket Open (as defined in the SLA).
In such cases, make the party in question the subject of in the sentence and use may. In the immediately preceding example, you’d say The Customer may terminate. Verbs good, abstract nouns bad.
You see is permitted used to refer to permission granted by some other provision in the contract, or by some other contract:
… as of the date of the issuance of such Letter of Credit, the Borrower is permitted under the Permitted Secured Debt Documents, the Senior Unsecured Debt Documents and the Permitted Unsecured Debt Documents to incur such Credit Extension …
Seller agrees to give appropriate notices of termination of the Contracts which Buyer timely notifies Seller it wants cancelled, but only to the extent termination is permitted thereunder without penalty to Seller.
In the first of the two examples immediately above, you could replace is permitted to with may. And with some reworking you could do the same with the second example. But would you want to? For expressing obligations, to avoid confusion I would use is required to instead of shall to refer to obligations imposed elsewhere in a contract or by some other contract. Shouldn’t I apply the same approach with language of discretion?
In a word, No. The distinction between shall and is required to makes sense because the convention is to use shall only to impose an obligation, as opposed to using it also to refer to an obligation imposed elsewhere. No comparable convention applies to use of may, because may is used more broadly in contracts than is shall. For example, may is used to grant discretion to nonparties.
This is the kind of nitty-gritty post I like.
The second example in the third box concerns permission granted in another contract. You say, ‘with some reworking you could [replace *is permitted* with *may*]. But would you want to?’
Unless I misread what followed, you answered your own question in the affirmative. I gave it a shot (deletions bracketed, additions asterisked):
Version 1a (minimalist version that simply replaces the *is permitted to* construction with a *may* construction):
Seller agrees to give appropriate notices of termination of the Contracts which Buyer timely notifies Seller it wants cancelled, but only to the extent *Seller may terminate those Contracts* [termination is permitted thereunder] without penalty to Seller.
Version 1b (a “full MSCD” edit:
*The* Seller [agrees to] *shall* give appropriate notices of termination of the Contracts which *the* Buyer timely notifies *the* Seller [it] *the Buyer* wants cancelled, but only to the extent *the Seller may terminate those Contracts* [termination is permitted thereunder] without penalty to *the* Seller.
AWB:
You could also have said, “only to the extent that those Contracts permit the Seller to terminate them.”
Chris
Agreed, but there goes the ‘may’ construction. Probably that’s no vice, but I’d be interested in Ken’s view of your suggestion.
I also wonder how rigidly the rule against anthropomorphism is to be applied: is it MSCD-compliant drafting to have contracts rather than parties permit, forbid, and require things? –Wright
why not use “can” instead of “may”? “May” can mean both ability
and possibility. “Can” can really only indicate ability.
Actually, may connotes permission, not ability.
Agree with the thrust of the blog and comments. I think “will” or “must” is much clearer (and more modern language) than “shall”. (I appreciate that “shall” is the common English legal approach, but I do not know anyone in NZ younger than 75 who says “shall”.) “Can” in a contract to me clearly permits the relevant party but does not oblige them. In this part of the world it may have a clearer meaning to a lay person than “may”.
Hi. I sense that you’re a newcomer this blog and the shall wars that have been waging lo these many years. Things aren’t as cut-and-dried as you think. You might find of interest the following article, written for an Australian readership: https://www.adamsdrafting.com/wp-content/uploads/2014/09/Banishing-Shall-from-Business-Contracts-ACLA.pdf.
Thanks Ken. I am new to your blogs, which I enjoyed looking at. I did not say things were cut and dried. Nor did I suggest outright banishment of shall (which seemed to be the concern of your article). But I do not think “shall” is necessary and it is archaic. It is rarely seen in NZ contracts (so here at least there may be little to banish). I think your acceptance of other language for consumer contracts is consistent with my point (although I note that you distinguish the contexts). I agree that context can make a difference but your concerns may be overstated. For example, one concern seemed to be using alternatives to shall when using the passive voice. Yet that may not be an issue in practice. Drafting with the active voice has been favoured here for at least 3 decades – in part because of the potential ambiguity stemming from the lack of noun or pronoun. Anyway, I have enjoyed looking at your site, applaud you for your work on plain English and was contemplating buying your book (so take care with any reply…).
Yes, shall is on its way out in everyday English, but it serves a useful purpose in contracts. If shall didn’t exist, I’d be inclined to invent it.
And yes, the “has a duty” test helps remind drafters not to use the passive voice when expressing obligations. But the key distinction is between obligations and conditions: use must for both and you’re likely to confuse the two.
Enjoy the book! ;-)