Reader Mike reminded me of the usage may but is not required to, as in the following provision:
Indevus may, but is not required to, assist Esprit, at Esprit’s election, in Esprit’s efforts to seek and obtain FDA Approvals, subject to reimbursement of Indevus’ related costs and expenses.
The word that comes to mind is “lame”—may expresses discretion, so is not required to is redundant. Am I missing something?
By the way, this usage is related to may at its discretion.
Ken: I believe you are missing nothing here. I see this usage frequently and it shakes me to my core. Only a lazy drafter would conclude he is adding anything to ‘may’ with “but is not required to.” You are being kind with ‘lame.’
The example you use is even funnier when you think that the author went discretion crazy by adding “at Esprit’s election”.
So Indevus has discretion to help Espirit, but only when Esprit wants it. But if Esprit wants help, Indevus doesn’t have to do anything.
I don’t know the entire context of this clause, but it seems reasonable to me that FDA Approvals might be one of those situations that calls for less discretion and a clearer set of obligations. Indevus may have a huge incentive to say, “well… you know, I’m sorry you can’t get your approvals, but I just don’t have time unless you give me more money.”
I agree it’s lame and wouldn’t do it. One thing I can think of is that they’re trying to avoid some feared confusion between definitions of may as “is able to”, “is permitted to” or “might.”
More likely, they didn’t think about it at all and just liked the way it sounded.
I agree with all the above commnets; however, having “been there” I can see that this language may have come from talking with clients who each wanted language that THEY thought was clear – only it may actually not be!
I totally agree it’s lame. However, I do a substantial amount of international drafting and negotiation. Language that sends shivers down our (Anglo-Saxon legal) spine, such as this, gets me a whats-the-big-deal-lets-include-it gaze from the other side’s counsel.