Table 4 in MSCD lists a bunch of suboptimal ways of saying may. In the past three years I’ve identified others; see here and here. Today, I’m proud to offer you yet another: is allowed to and its variants!
Here are three examples:
… and in the absence of any such indication, the Holder shall be allowed to [read may] presume that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries.
In addition, Executive shall be allowed to [read may] use “points” or “awards” earned from the use of any corporate credit card, any airliner or hotel chain for personal use so long as Executive personally pays for any fees associated with securing such cards or memberships in such reward programs.
… provided, however, that Seller shall be allowed to [read may] have other representatives present during any such interviews.
How can I have been so blind as to not have noticed it before!
Of the verb structures sanctioned by my categories-of-contract-language regime, may takes the prize for having the greatest number of cruddy alternatives.
Query: are the ‘cruddy alternatives’ to ‘may’ suboptimal instances of language of discretion, or non-members of the category? (Cf. bad art vs. non-art.)
Wright:
My test for “may” is whether I can replace the structure with “the other party shall permit X to …” If so, then “may” works. So far, I haven’t found situations where that doesn’t fit. It also helps me distinguish between cases where the language isn’t really language of discretion because the other party has no power to grant discretion; sometimes, that distinction is harmless though.
Chris
Dear Chris, I like your practical approach but humbly submit three observations.
First, my query was merely analytical: are cruddy alternatives to ‘may’ members of the category of discretion or not? Your test aims to tell whether ‘may’ ‘works’, ie is the right choice in a particular context. Good question, but a different one.
Second, looking at your test on its own terms, I like how it makes explicit that one or more *parties* do the granting. But I think the particular formula ‘Party A shall permit X to’ deviates from the meaning of ‘may’ because it means ‘Party A, by signing this contract, takes on a duty to grant X discretion to’. I submit that ‘X may’ means ‘Party A hereby grants X discretion to’. It’s the difference between (1) Party A assuming a duty to grant X discretion at some point after signing and (2) Party A granting X, at signing, immediate discretion.
Finally, I’m pondering what you say about situations where a party has no power to grant discretion: ‘The Drivers may drive up to the speed limit’? It isn’t the Employer giving the lorry drivers discretion; background law does that. The sentence isn’t language of discretion, but language of no category of contract language. Maybe that’s going too far; maybe the example is ‘cruddy language of obligation,’ ie a cack-handed way of saying ‘The Drivers shall not exceed any applicable speed limit’. But your point is good.
Ah, what is so rare as the depths of ‘may’. Cordially, Wright
The category of contract language is determined by what meaning you’re trying to express. There are always various alternative verb structures you could use to express that meaning, only one of which is optimal.