Dual Verb Structures: “May But Is Not Required To”

In my newfound zeal for dual verb structures, I’ve written about the following examples

Each of those examples features two inconsistent verb structures ostensibly working together. I now offer you two verb structures that say the same thing, with the second offered as an exception to the first, namely language of discretion (may) and language of discretion (is not required to or is not obligated to):

… the Corporation may at its sole option, but is not required to, redeem a sufficient number of shares of any Series of Term Preferred Shares …

… the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock …

The Subadviser may, but is not obligated to, combine or “batch” orders for client portfolios …

In addition, the Indenture Trustee may, but it is not obligated to, request the repurchase of an ARR Receivable on behalf of all Noteholders.

Obviously, may by itself is all you need, as discretion entails the lack of obligation. You can find thousands of examples of this sort of thing on EDGAR, but that doesn’t make it any less silly.

What accounts for this silliness? Presumably the same factors that account for dysfunctional contracts prose generally: The risk-averse mentality, that favors the prolix, just in case. The legalistic mentality, that justifies its existence by opting for pseudo-complexity over clarity. And the copy-and-paste mentality, that replicates whatever is presented to it.

As a bonus, here’s something I’ve found only a few instance of on EDGAR, namely language of obligation plus language of obligation:

The Indemnified Party shall, and is obligated to, (a) take all reasonable steps …

… the Employer shall and is obligated to cooperate with the Contractor to measure and retest on the site at the agreed time.

Excuse me while I roll my eyes.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.