In chapter 3 (Categories of Contract Language) of A Manual of Style for Contract Drafting, table 3 (Language of Discretion: May) showcases 16 ways to say may with more words and less clearly.
Friends, it’s time to introduce you to a 17th way. It’s in the extract in the image above: has the option to. It’s from a consulting agreement on EDGAR. To use the example in table 3, instead of saying Acme may appoint one or more subcontractors, you’d say Acme has the option to appoint … .
Like the 16 other alternatives to may, that’s lame. A basic principle of contract drafting is that contract language should be consistent. Another is that contract language should be concise. (Those are two of the 12 principles stated in chapter 1 (The Characteristics of Optimal Contract Language).) So say may instead everywhere you wish to express that meaning.
But what if someone is being granted an actual option? (According to Merriam-Webster’s definition, an option is “a contract conveying a right to buy or sell designated securities, commodities, or property interest at a specified price during a stipulated period.”) Here’s an example: Landlord hereby grants Tenant the exclusive right and option to lease the Fourth Expansion Space (the “Option”).
In that context, using language of performance with option seems OK. And it has the advantage of allowing you to use adjectives, in this case exclusive. On the other hand, using right as well is redundant.
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Ken:
Saying that someone has the option to do something seems to carry less connotation that they are constrained by reasonableness or good faith than saying that someone may do something. I might be importing that sense from options to purchase and options to sell. I just feels that, if I have the option to do A, I can freely do A or not-A with no one second-guessing it. I don’t have MSCD to hand, but could you give your thoughts on whether your analysis there about constrained discretion and “may” apply just as well to “option”?
Chris
Hi Chris. I’m afraid there’s no basis for distinguishing between having an option and the umpteen other means of expressing discretion (including may. Ken
Discretion is permission without obligation. ‘May’ expresses discretion well and concisely, as you say.
In common parlance, ‘may’ can also signify possibility: ‘It may rain.’ The hygenic drafter never uses ‘may’ that way, using ‘might’ instead. But how is the contract reader to know the drafter’s discipline on the point? I think it would be prudent to have a few words in the definitions and interpretive rules section to the effect that ‘”May” confers discretion and does not signify possibility.’
Mere lack of obligation (e.g., ‘is not required to’, ‘need not’) is not a grant of discretion, because it includes no grant of permission. To indicate the absence or boundaries of obligation calls for what I think of as ‘language of lack of duty’ (in MSCD terms, maybe language of declaration or language of policy?).
Example: ‘The painter shall paint all the houses and shall paint at least half of them blue and the remainder blue or any other color on the Color Chart’.
That grant of limited discretion is ‘buried’ and uses neither ‘may’, ‘option’, or ‘discretion’.
A less desirable (in my view) way of saying the same thing is:
‘The painter shall paint all the houses, shall paint at least half of them blue, and may paint the rest any color on the Color Chart’.
Maybe I’m wrong and the second formula is better than the first. I just don’t like the slight contrast between ‘shall paint’ and ‘may paint’ in the second formula, fearing that it tends to subvert the duty to paint all the houses.
I’ve typically chosen the second structure it avoids burying the discretion. Rightly or wrongly, years of dieting on the MSCD has made me want to be explicit regarding duties and discretion.
Also, because houses are countable, in my mind, inserting numbers makes the second version less susceptible to mischief: ‘The painter shall paint 30 houses, shall paint at least 15 of them blue, and may paint the other 15 any color on the Color Chart.’
I agree with the second structure, and your improvements.