I recently saw this tweet by @CherylStephens:
Contract says "Company has the right to request" when it means "can require." Right? Otherwise, just says they can ask?
— Cheryl Stephens (@CherylStephens) September 12, 2015
Ah, I said to myself, may request! Categories-of-contract-language issue 24,773! So I popped some penicillin and waded into EDGAR. Here’s a taxonomy of may request.
Restrictive Relative Clause
Let’s get something out of the way first. You see may request in a context that has nothing to do with language of discretion. Instead, may is used to mean might in a context where it’s redundant to express that meaning (see MSCD 3.338). An example:
… such other information as the Company may request [read requests] …
When may request is used as the main verb, its function might simply be to say, as Cheryl suggests, that a party may ask something, and that’s it. Here are three examples of that:
The Company may request increases in the limits under the Term Facility and the Revolving Facility and may request the addition of one or more term loan facilities under the Credit Agreement.
If Atlantic is in doubt as to any action it should or should not take, Atlantic may request directions, advice or instructions from the Trust or, as applicable, the Trust’s investment adviser, custodian or other service providers.
GenSight may request the assistance of Genethon for the preparation of the regulatory filings, the discussions and presentations to regulatory agencies, the design, implementation and monitoring of clinical trials. Should Genethon agree, at its sole discretion, to provide such support it is expected that GenSight shall pay Genethon’s internal and external costs in the performance of such activities.
A party could always ask anyway, even if the contract were silent, so that raises the question, Why bother? I guess for the same reason that you routinely see in contracts the phrase unless the parties agree otherwise. They could agree otherwise without having it stated in the contract, but presumably reminding one or more parties that the parties could address an issue down the road provides a measure of reassurance.
Leading to an Obligation
It might be that may request results in an obligation being imposed on another party:
Pending the preparation of Definitive Notes, the Issuer may request and the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver temporary Notes of such Series.
In this context, we’re really dealing with an instruction rather than a request. It would be simpler to omit X may request and instead say at the request of X, Y shall. In the example above, if an Issuer Order reflects the Issuer’s request, that’s already provided for—you could just omit “the Issuer may request and”.
Here are two more examples that reflect this dynamic:
the Board of Directors may order, or any shareholder(s) owning in the aggregate not less than ten percent (10%) of the total number of shares of Preferred Stock outstanding, irrespective of series, may request, the calling of a special meeting of holders of Preferred Stock, which meeting shall thereupon be called by the President, a Vice President or the Secretary of the Corporation.
Seller acknowledges and agrees that Purchaser may request prior to the Effective Date, and Seller will promptly deliver to Purchaser or its legal counsel, as directed by Purchaser, additional documents based on Purchaser’s review of the Initial Deliverables
But in some contracts, the follow-on obligation is omitted. Consider this example:
… the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and or titles of officers authorized at such time to take specified actions pursuant to this Indenture …
I assume that the Trustee’s request isn’t a casual one that the Company could blithely ignore. I’d revise this example to incorporate the structure at the request of X, Y shall.
Here are three more comparable examples:
In the event of conflict of interest between the Beneficiar(y/ies) concerned and the auditor, the Beneficiaries in question may request the appointment of another auditor.
Notwithstanding the foregoing, and whenever necessary, either Party may request additional extraordinary meeting(s), subject to a reasonable prior notice to the other Party and sufficient explanations as to the necessity of that extraordinary meeting.
In the case of a partial exercise of this Warrant, the Holder may request that the Company deliver to the Holder a certificate representing such new warrant, with terms identical in all respects to this Warrant (except that such new warrant shall be exercisable into the number of shares of Common Stock with respect to which this Warrant shall remain unexercised) …
Ain’t categories of contract language fun!