Regular readers of this blog will know that I’m, um, fallible. A recent post offered a brilliant example of that.
In this comment, reader John Dorsey mentioned that might conveys a lesser degree of possibility than does may. I expressed doubt about that. John responded by pointing to one of my blog posts. It quotes The Cambridge Grammar of the English Language offering exactly that distinction.
John was very gentlemanly about it, but I thought I should take this opportunity to assuage my embarrassment by explaining why I think this distinction is irrelevant, so irrelevant that I put it out of my mind entirely.
In the post linked to above, I say, “To convey the possibility of something coming to pass, instead of may use might (if it’s uncertain whether the event will come to pass).” Regarding any distinction between the degrees of possibility expressed, I say in the post, “The parties are less interested in parsing the likelihood of the event happening than in specifying the parties’ rights and obligations if it does happen.”
Consider the following of use of might, in a conditional clause:
… unless the Manager is promptly advised that the Sub-adviser believes such action may not be practicable or might involve any party in a breach of any law, rule or regulation …
For any distinction between may and might to be viable for purposes of contracts, you’d have to be able to say that using might here is to the advantage of whoever benefits from the condition’s being satisfied, because the condition would be satisfied with a lesser degree of possibility. But that’s an impossible notion.
For one thing, The Cambridge Grammar of the English Language says that might “suggests a slightly lower degree of possibility” than may. It’s a suggestion. And the distinction is slight. That’s way too elusive to work for contracts.
Furthermore, the distinction is a relative one, so there’s no way to assign an absolute degree of possibility to a given instance of may or might. The best you can say is that it’s possible that whatever it is will come to pass.
Note how the above example contains two elements, one using may, the other might. Arguing that they express differing levels of possibility would require a terminal case of literalmindedness.
And there’s the example—it’s language of declaration—I used in the blog post that prompted John’s comment:
Acme acknowledges that X might not happen.
For a distinction between may and might to be viable in this context, Acme would have to be able to argue that although it acknowledged that whatever it is might happen, the actual level of likelihood was that associated with may, so the acknowledgment is of no effect. Again, making such an argument would require ignoring the semantic realities.
So I’m not surprised that I’m not aware of anyone’s having ever argued in a contract dispute that may and might express different degrees of possibility.
I use may to express discretion, so I don’t want to use it express possibility too. That’s why I recommend using might for that purpose, even though may and might are equivalent. For more about that, see this 2014 blog post.
“Might” is a vestigial subjunctive usage that does indeed express doubt to a greater but unspecified degree about the eventuality of something (it bears a kind of “false friend” relationship to the German auxiliary verb “mögen,” which actually means “to like” and which conventionally uses the subjunctive form “möcht…” to make the liking less emphatic and more polite). However, since you’re all about disambiguating things, and use “may” for permission or discretion, then it should be banished from conventional contractese in the sense of possibility. It might, um, be best to take another cue from German and use “can” and “could” to deal with possibility; I don’t think you’ve assigned special roles to those words in MSCD.
Erudition? On this blog? There must be some mistake! ;-)
In formal speech (and that includes contracts), can connotes physical or mental ability. The same goes for could, but with “a stronger sense of doubt,” at least according to Garner’s Modern American Usage.
Yes, but how would that play out in a contract? “Can” and “could” could or can connote the capability of a thing to happen (“it could be that…”), which turns out to be synonymous with “might,” but where in a contract would one describe a physical or mental ability, as opposed to “legal” ability, or just probability, which we describe using different words? I lack the mental ability to remember any instance in which “can” or “could” in a contract weren’t misuses of other categories of contract language.
Contracts use formal speech, but as you never tire of saying, it’s also stylized speech, so relegating “may” to permission and “might,” “can” or “could” to probability shouldn’t be too taxing.
I already use may for language of discretion and might to connote possibility, so I don’t need can or could. No loss, given that, as you note, they’re generally misused in contracts.
You’re moving so fast! Is there now a rule to the effect “Use ‘might’ in contracts, and not ‘can’ or ‘could’, to indicate any unquantified degree of possibility, probability, or likelihood’? So sez U? Wir möchten wissen!
I have thought of delineating the use of “may” and “might” in prospectus language, particularly in the “risk factors” section.
Risk factors are generally a permutation of the following: “An event may occur. We may not be able to mitigate the effect of such an event. As a result, our business may be adversely affected.”
I have had some success in convincing drafting party to avoid the use of “may not” for “might not” on the basis of avoiding misinterpreting the language to mean that the issuer has the discretion not to mitigate. I have also had some success in convincing drafting party to use the conditional and subjunctive “could” in the third context, and “would” when there is an element of volition. But the weight of the convention remains on using “may” to connote possibility.
I am just curious to know if you [may/might/could/would] sleep equally well here, if “may” is used in all of the above.
I don’t think there’s any risk of anyone thinking that the may conveys discretion, but it would be clearer to use might. By the way, welcome to the blog!
Dear Ken, I have the good fortune of purchasing the “Legal Usage inDrafting Corporate Agreements” early in my career. It has been tremendouslyinfluential in helping me acquire the acumen to be a decent contractdrafter. Based in Hong Kong, my practice involves negotiating andnavigating through contracts drafted in Chinese and English, often by draftingparties to whom English is a second language (yours truly included). I haveonly recently re-discovered you blog and am still working my way through thedrafting gems contained in it. I have noticed that many of the participants on your blogare outside of the United States and you also hold seminars outside of the U.S. I am grateful that you are taking intoaccount that English is the common international contract language. The challenge we face in the future is not just ensuringa clear contractual language that would be interpreted as intended in all ofthe common law jurisdictions but in all of the civil law jurisdictions as well. Having witnessed your rigor and dedication, I thought I havea few related, but off topic, observations that might be worthy of discussions. 1. The couplet“represents and warrants” has taken root outside of the common lawjurisdictions. In my earlier years, I did see Chinese language contract thatused “states” as the language of representation. Now I frequently see “declaresand guarantees”. I suspect this is also spreading throughout other civil lawjurisdictions as the English drafting customs is being adopted. 2. I am curious tofind out if boilerplates that are standard outside of the U.S. could or shouldreciprocally be adopted by lawyers within the U.S. One that immediately comes to mind is the“no intended third party beneficiary” provision. I recall that thedetermination of whether a third party is an intended beneficiary (and a claimtherefore exists) can be just as murky under U.S. laws. But I do not know why the Americans alwaysoverlook this and this provision seldom makes it into the canon of things to copyand paste. 3. Though I believeyou would champion the use of indicative mood in contract drafting, as the useof subjunctive mood is confusing enough of a topic even for native Englishspeakers, do you foresee a place where subjunctive mood has its use? I have read somewhere that subjunctive has noplace in contractual conditions, as contractual conditions are factual (type 0)or real (type 1) and never unreal (type 3) or impossible (type 4). (I also wantto thank you for your reply on my earlier inquiry on the risk factor language and jussive mood.) 4. I also applaudyour analysis of the indemnity language. I recall witnessing a civil law judge who while reading a translated wordfor “indemnify” took a wrong turn by determining it as inappropriate outside ofan insurance context. We ended up in the land of performance surety bond andrestitution damage. A path I dread to take twice. (That was a one-timeoccurrence as both “indemnity” or “shall be liable” are common concept that Ido not believe should have been an issue in the first place.) 5. Do you have anythoughts and guidelines on the “neither… nor…” v. “neither… or…” constructions? Eagerly awaiting MSCD 4.0. J.L.
That’s a lot of questions! Some of them are addressed in MSCD. I just arrived in Bangkok, and it’s late, so excuse me if I don’t respond now.
So you own LUDCA! It was a good start, but I’m happy to say that MSCD has grown into something way more comprehensive and authoritative.