“May” and “Might” and Degrees of Possibility

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.

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.