Regular readers will know that it has long been a hobby of mine to collect weird ways that drafters find to say may.
But at some point, your cross the line and it’s no longer fun and games. Instead, you confront the horror. Friends, we’ve reached that point. Behold the following:
The Grantee is hereby empowered to do any and all lawful acts necessary or desirable to effect the performance of the duties under the Administration Agreement …
… and the Company is hereby empowered to appoint and remove at its pleasure any person as agent and substitute for and on behalf of the Company in respect of all or any of the matters aforesaid.
The Escrow Agent is hereby empowered on behalf of the Company to endorse and collect in the banking system all checks received on account of Purchases of the Common Units.
Sweet Jeebus! My eyes are bleeding! Is hereby empowered to? It brings to mind someone with blue lightning bolts coming from their fingertips. I have the power!
The examples above were flushed from the common latrine that is EDGAR. Fifty-five more examples like it occur in contracts filed in the past year.
Let’s use may instead, please.
3 thoughts on “Worst Alternative to “May” Ever”
What a mild conclusion from such an impassioned lead-up!
Let me, like the birds that pluck oats from horse droppings, point out two small virtues of *is hereby empowered to*:
(1) it highlights the fact that its better alternative (may) is granting language, a kind of performative, and
(2) it eliminates as the grantor (by-agent) any extracontractual source.
That second virtue would be greater if it actually identified the by-agent. *May* does both jobs, but compactly and implicitly.
I usually see “is empowered to” in corporate or LLC resolutions rather than contracts, where it is meant to communicate that the subject has legal authority to do whatever thing is being approved. But then, it’s often stacked on top of “authorized,” “directed,” or both, where it adds nothing.
My immediate thought on Ken’s third example was that differs from the others in that it establishes agency authority, and even though “may” probably works, I don’t have any problem with using words of agency such as “authorized.”