“May” Can Mean “Might,” But I Sleep Well at Night Anyway

May can mean might, but I don’t think that’s any reason for me to stop recommending that you use may as the workhorse for language of discretion.

Here’s what MSCD 3.160–62 says about may meaning might:

In addition to conveying discretion, may can also be used to express that something might come to pass. The result is ambiguity. Consider the following provision: The Investigator may provide the Sponsor with confidential information. It could mean that the Investigator is authorized to provide the Sponsor with confidential information, but it could also mean that it’s possible that the Investigator will do so.

Although one can usually discern from the context which meaning is intended, it would nevertheless be best to avoid this sort of ambiguity. If the intention were to convey possibility, you could restructure the provision in question to omit may. For example, the above example could be rephrased as If the Investigator provides the sponsor with confidential information, then …

Alternatively, to convey the possibility of something coming to pass one could instead of may use either might (if it’s uncertain whether the event will come to pass) or expects to (if it’s likely that the event will come to pass and a party is the subject of the sentence). The Cambridge Grammar of the English Language, at 200, says that might “suggests a slightly lower degree of possibility” than may, but that shouldn’t be an obstacle to the use of might—the parties to a contract would be less interested in parsing the likelihood of an event happening than in specifying the parties’ rights and obligations if it does happen.

But even if you use something other than may to express the meaning might, that could leave readers wondering whether a given may in fact means might. That concern was expressed in two comments to my recent post on shall not … unless versus may … only if (here).

Here’s the relevant part of Vincent Martorana’s comment:

[A]s a general matter, “may” can mean “is/are permitted to” (i.e., discretion) or “might possibly.” I know that context plays an role here, but I now use “is/are permitted to” to convey discretion rather than “may.” And I use “might” to convey possibility.

And here, to essentially the same effect, is the relevant part of Rick Colosimo’s comment:

As for “may,” I’ve banished it in favor of “is entitled to,” with “is not entitled to” as a replacement for “may not.” I agree that the ambiguity of “has a right to” and “might do X” is not helpful.

But before jettisoning a word because it conveys alternative meanings, it’s appropriate to ask (1) what risks the alternative meanings pose and (2) what the cost is of change.

I don’t see that may-means-might creates meaningful risk. Consider again the sample sentence used in the above MSCD extract: The Investigator may provide the Sponsor with confidential information. Party A says that may expresses discretion; Party B says that may means might. It’s hard to see what benefit Party B could derive from its position—if you accept that the Investigator might provide confidential information, it’s hard to see how you could use that to argue that the Investor isn’t allowed to provide confidential information.

(By the way, the meaning might occurs in what should be language of declaration: either a party is making a statement of fact that it might do something, or a party is acknowledging that the other party might do something. That requires that you introduce the sentence with Party A states that (no, not Party A represents and warrants that!) or Party B acknowledges that. Of course, given the chaotic state of verb structures in traditional contract language, use of language of declaration doesn’t rule out the possibility that in using a given may a drafter had in mind discretion.)

As regards the cost of change, I feel as if I’m already asking people to give up a lot that’s familiar. Asking them to drop may—a basic building block of everyday English—in favor of a more cumbersome structure that offers no, or negligible, benefits seems counterproductive and perhaps quixotic.

Compare that to my preference for shall not over may not. (See MSCD 3.223–24.) The risk of ambiguity is greater, in that may not conveys three alternative meanings, not two, and those meanings (is not authorized to; might not; is authorized not to) are semantically inconsistent. And compared to the proposed replacements for may, the replacement—shall not—isn’t cumbersome, particularly when you take into account that I use shall to express obligations imposed on the subject of the sentence.

My thanks to Vincent and Rick for prompting me to think through this again.

Posted in Categories of Contract Language | 6 Comments

  • http://rickcolosimo.com Rick Colosimo

    I think you’re absolutely correct on the core message of analyze the language, determine the risks of potential ambiguity (and other problems), and deliberately make an informed decision. That’s drafting.

    My decision to avoid “may” stems from a desire to avoid the cost of analyzing the potential ambiguity in the first place. If you and I both agree that “is entitled to” gives the “is permitted to” denotation of “may” without the possibility of the “might” denotation, then I never have to analyze the sentence further — my analysis takes place only at the step when I decide that “is entitled to” accurately describes what I’m trying to say. It’s harder to make a mistake this way than through the deeper analysis.

    (I think the same basic argument applies, for example, to the Oxford comma. Yes, if you write clearly and recognize the potential ambiguities, you can use and not use it in ways that do not convey ambiguous meanings. However, if you always use it, you will be hard-pressed to create ambiguity by doing so and almost completely eliminate any risk of getting the analysis wrong in the first instance (or just rushing past it as *might* happen to a busy lawyer).)

    Using “is entitled to” is a way of setting myself up for success by eliminating the need for deeper analysis without having to just take my chances or hope/assume/expect that I’ve paid enough attention to it to get the analysis right every single time. In this arena, why not take the clearer road?

    So I’ve adopted “is entitled to” to communicate just one thing — qualified greatly by MSCD 3.212: turning poorly drafted “may” and “is entitled to” clauses into the obligations that they are dancing around.

    • http://www.adamsdrafting.com/ Ken Adams

      Where we differ is in the level of risk involved. I say it’s nonexistent, and I challenge you to find me an instance of a dispute over whether “may” means “might,” or even to come up with a plausible scenario. Though I applaud the urge for clarity, I suggest that you’re deforming your contract prose for no reason.

  • AWrightBurkeMPhil

    All this fuss!

    The problem Ken and Rick both see is that “may” could be misunderstood to refer to possibility rather than to discretion.

    Ken is willing to run that risk because he cannot bear to ask his followers (I am one) to give up “may.”

    Rick goes the other way: the risk of misunderstanding “may” is unendurable and requires using another expression, “is entitled to.”

    I can’t go with “is entitled to” or “is permitted to” because of the passive voice formulation without a an expressed by-agent.

    Ken’s solution is to brazen it out with naked “mays” and just endure the risk of the occasional misunderstanding.

    As between the two, I prefer Ken’s solution, but wouldn’t a third way be better than either?

    “In this agreement, ‘may’ refers always to discretion and never to possibility, and ‘might’ refers always to possibility and never to discretion.”

    This 22-word rule of interpretation (a) solves the problem instead of leaving it hanging; (b) saves our beloved “may”; (c) avoids unnecessary passives; and (d) does these things without need to refer to anything outside the four corners of the contract, not even to MSCD (which is nevertheless indispensable).

    Surely this bundle of benefits outweighs Ken’s prejudice against what he calls “drafting conventions.”

    I have my own aortic problems with language of discretion, but on the use of “may,” I fear you two are nibbling on a capillary.

    P.S.: Love the Oxford comma!

    • http://www.adamsdrafting.com/ Ken Adams

      You and your love affair with drafting conventions! A narrow objection: as there’s essentially zero risk of a dispute over whether “may” means “might,” I don’t feel inclined to waste 22 words to eliminate the risk of such a dispute.

      General objection No. 1: This sort of drafting convention is OK if one is a master of categories of contract language. If one isn’t, this sort of drafting convention won’t work. Imagine taking a convention stating that “shall” means “has a duty to” and sticking it in the average bit of traditional contract language.

      General objection No. 2: Something’s amiss if one needs to elucidate the basic building blocks of English.

      • AWrightBurkeMPhil

        I make no apology for finding concise interpretive rules a grand solution to many drafting problems (including “including”). If it’s a love affair, it’s with a beauty.

        I rather agree with your narrow objection (low prob of misunderstanding), so make my recommendation conditional: if you think there’s a risk of “may” being misunderstood as “might,” don’t eliminate the risk by banishing “may” and substituting an awkward passive, use a concise interpretive rule instead and sail on worry-free with “may.”

        As for General Objection No. 1: Thrice wrong.

        1/ This sort of interpretive rule exists precisely to reduce the need to be a master of categories of contract language. It’s spoon-feeding.

        2/ It “works” because if you don’t need it, you don’t read it. If you need it, it’s there.

        3/ An interpretive rule that “shall” expresses a duty of a party that is the subject of the sentence is a great idea. If such a rule shines like a morning star next to “the average bit of traditional contract language,” can it really be Ken Adams we hear objecting?

        As for General Objection No. 2 (“Something’s amiss if we have to elucidate the basic building blocks of English”): That’s a given. There even are places where English completely disappears. In America, they haven’t used it for years!

        Arabians learn Arabian with the speed of summer lightning. And Hebrews learn it backwards, which is absolutely frightening.

        Okay, the previous paragraph was gratuitous. But that doesn’t matter now.

        I just want to protect my clients from as many dangers as I can, including the darkness in some minds about the basic building blocks of English.

        It’s odd to get resistance from you for what is really little more than announcing in the contract the applicability of some of your own recommended usages.

        Such interpretive rules are spiritual kin to your recommended practice of using cover memos to tell your supervising attorneys and your negotiating partners that your drafts conform to MSCD style, so they don’t get the vapors when they see departures from traditional contract language.

        How can you be on the wrong side of this? Are you at least sound on the Oxford comma?

        –Best regards, Wright

        • http://www.adamsdrafting.com/ Ken Adams

          Regarding General Objection No. 1 (sounds like something dreamed up by the Comintern), my point is that a provision stating the “shall” drafting convention can’t act as a corrective: if the drafter isn’t in command of “shall,” the provision is false. And those who are in command of “shall” are exactly the people who won’t need the provision, as their categories of contract language will be beyond reproach or confusion.

          Let’s forget about General Objection No. 2. Anyone who mentions it again will have to answer to the Comintern.

          By the way, “sound” gives me the heebie jeebies. It’s a favorite word of you-know-who.