The Hidden Meanings of "May" in Contract Translation

 

According to Merriam-Webster, in its auxiliary function, “may” can express several things:

• wish or desire, particularly in prayer, imprecation, or benediction (“may the best man win”);

• purpose or expectation (“I laugh that I may not weep”);

• contingency (“he may be slow but he is thorough”);

• choice (“the angler may catch them with a dip net, or he may cast a large, bare treble hook”);

• may or must (“in law and contracts”).

While most of these uses are pretty straightforward, in contracts, “may” can sometimes be ambiguous and hard to translate. If unfamiliar with the multiple categories of language with which “may” is used in Common Law contracts, legal translators may mistranslate the term as if it always meant to express that something might come to pass (i.e. to express possibility, when what it is actually expressing is discretion).

When Does “May” Convey Discretion?

Following Adams’ categories of language, language of discretion is the category drafters use to indicate that a party has the discretion to take a certain action or not. Discretion is primarily conveyed by “may,” in an active construction, where it means “has discretion to,” “is permitted to,” or “is authorized to,” as in: “Acme may, in its sole discretion, review the qualifications of subcontractors and reject, without affecting any of Acme's rights under the Contract, a proposed subcontractor that Acme reasonably considers is not qualified to perform obligations under the Contract.”

May can also convey discretion as a passive construction, in which case it indicates that:

1) the one or more parties who “have discretion to,” “are permitted to,” or “are authorized to” are represented by a by-agent, as in: “The option may be exercised by Acme any time before December 31, 2018,” or

2) said parties are absent, as in: “The option may be exercised any time before December 31, 2018.”

When Does “May” Convey Possibility?

As I mentioned above, “may” can be used to express that something might come to pass (i.e. that it is possible). However, in that case, “may” can be ambiguous. So, we need to keep our eyes peeled when translating. Consider the following example: “The Investigator may provide the Sponsor with confidential information.” This could mean either that the Investigator is authorized to provide the Sponsor with confidential information or it could just as easily also mean that the Investigator will do so. Of course, in context one can usually discern which meaning is intended. But what happens when you can’t and, as a translator, you have to choose between a linguistic equivalent that conveys “is authorized to” and one that conveys “will”?

To make matters more complicated, “may” can also be used to convey possibility in restrictive relative clauses modifying a noun phrase, as in: “[…] any Person that Wile E. Coyote may introduce to Acme.” However, in such cases, “may” is superfluous and what is really being said is “[…] any Person that Wile E. Coyote introduces to Acme.” Legal translators need to keep their eyes peeled for this type of nuance so as to avoid incorrectly rendering “may” in such clauses as expressing possibility.

Other Issues Associated with May

Drafters will often use “may… only” to try to convey limited discretion, resulting in inherently ambiguous phrasing: “Acme may close any one or more contracts Stores for any reason, and in doing so it may consider only its own interests.” This phrase can mean either that Acme may choose to consider only its own interests, but it can also mean the only interests Acme is authorized to consider are its own.

“May require” is sometimes used where language of obligation would be much more appropriate: “Acme may require a Participant to retain shares purchased […],” when what is really going on is that a participant has an obligation to retain shares purchased upon Acme’s request.

The Takeaway

Having reviewed countless translated contracts throughout my career, I find there is a tendency (at least in my language combination) to translate all instances of “may” equally as meaning possibility. This is a mistake that translators should really try to avoid, as it could potentially have serious legal consequences.

Instead, translators should strive to understand what category of language “may” is conveying (i.e. what the parties intended). If that cannot be discerned from context, then translators should work closely with their clients to avoid ambiguity and double check their interpretation of problem clauses with “may.”

Further Reading and Resources

For more on categories of language, see A Manual of Style for Contract Drafting. For using Adams’ categories of language in translation, see my ATA webinar.

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