“Will Be Given the Opportunity To”

Over the years I’ve compiled the many confusing and wordy ways drafters have found to say may. Here’s another one: will be given the opportunity to (and its variant will have the opportunity to).

Here are some examples from the great coal-ash pond that is the SEC’s EDGAR system:

Each Tag Along holder will be given the opportunity to exercise their vested Options prior to or in connection with the consummation of a Sale pursuant to this Section 4(a) …

During the Due Diligence Period, Purchaser will be given the opportunity to conduct such other investigations and inspections of the other Assets (other than the Real Property) to be transferred … as Purchaser may reasonably deem appropriate.

Following the Effective Date, Optionee will be given reasonable opportunity to advise the Optionor in such filing, prosecution and maintenance …

Each party will have the opportunity to provide written submissions to the Independent Auditor.

Purchaser agrees to give Seller one (1) business day’s prior written or email notice of its intent to conduct any inspections or tests so that Seller will have the opportunity to have a representative present during any such inspection or test …

… provided, however, that … Buyer will have the opportunity to participate in such Tax Claim at its expense …

Buyer acknowledges that it will have the opportunity to inspect the Property during the Examination Period …

Yes, you could use may instead of will be given the opportunity to (and variants). But if Party A is given the opportunity to do something, that implies that Party B is in control. If that’s the case, it would be clearer to say that Party B shall permit Party A to do whatever it is.

Whenever there’s an obligation lurking in there somewhere, make that the focus.

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.

3 thoughts on ““Will Be Given the Opportunity To””

  1. Usual side note that all the examples have other problems, too, unrelated to the point under discussion.

    Agree that ‘B shall permit A to do X’ is the better way.

    But will ‘may’ work? It seems not to capture the futurity of the idea involved in these examples.

    Put otherwise, is ‘B shall permit A to do X’ really equivalent to ‘A may do X’?

    The former imposes a duty on B to give permission in the future, while ‘A may do X’ is B’s present grant of permission.

    Not sure how the distinction plays out practically, but in concept, isn’t it like promising to grant a licence later versus granting a licence now?

  2. In most of the quoted examples, “may” appears to be the better alternative. In the last one, I think the word “opportunity” is used to emphasize the point that bad consequences resulting from the failure to take the opportunity to conduct one’s due diligence rest with the Buyer (or, in any case, certainly not with the Seller). That example very likely leads in to some kind of waiver language rather than, by itself, serving as language of discretion on the part of Buyer to inspect the Property or obligation on the part of Seller to make the Property available for inspection. That sort of language no doubt appears elsewhere.

    I have usually seen “X will be given the opportunity to…” as another way of saying, “Before Y may take [some action or other], Y must permit X to [object, review, complain, exercise first right of refusal, duck, etc.]” But that often creates ambiguities. Does Y have to give X formal notice? How much time does X have to exercise its rights? And so forth.


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.