Use of May in Legal Documents

We call «shall» and «shall not» words of obligation. «Must» is the only word that imposes a legal obligation on your readers to tell them that something is mandatory. Also, «can`t» are the only words you can use to say something is forbidden. Who says that and why? The parties to a construction contract must ensure that they understand both the clear and ordinary meaning and the legal meaning of the words used. Here are some of the reasons why these documents require us to use the word «shall» when we mean «mandatory»: Please note: This bulletin is not legal advice, but only an attempt to provide general information on important employment and legal issues. Legal advice can only be provided after formal detention by a defence lawyer and must take into account the facts and circumstances of the case. Those who require legal advice, legal assistance or representation should retain the services of a competent legal advisor who is licensed to practice law in their area. Bryan Garner, a lawyer and editor of Black`s Law Dictionary, wrote: «In most legal instruments, violates the presumption of consistency. This is why shall is one of the most treated words in the English language.

1. Read carefully. While many lawyers write in a way that aims to appear unruly (a product of simple incompetence) or confusing (a product of complete dishonesty), don`t be intimidated by words in a contract, even if those words are «legal.» / Try to understand what you are reading and what your rights and obligations are. / If something doesn`t make sense to you, ask what it means and ask if it can be rephrased so the average person can understand what it means. To know what contract language means, it may be easier to «analyze» each sentence, that is, to isolate it and check its meaning separately from all the others. / It is a «tree instead of forest» approach. / Notice how I placed slashes (/) between each sentence of this paragraph. / I often use a pen to do this, and I find that it clears up confusion when I read an agreement and determine its meaning. Over time, laws evolve to reflect new knowledge and standards.

During this transition, «must» remains the safe and informed choice, not only because it clarifies the concept of commitment, but also because it does not contradict any case of «must» in the CFR. Currently, federal departments are reviewing their documents to replace all «should» with «shall». It`s a big effort. If you look at page A-2, section q of this order, you will find an example of how a typical federal regulation describes this change from «shall» to «shall». Don`t go through this long process. If you mean mandatory, write «shall». If you mean forbidden, write «can`t.» Some common uses of the word «may» in a legal sense are: «The employee shall participate in all benefits, welfare and bonus programs that the employer may offer to its employees.» If the possibility of an event occurring has no contractual implications, it may be preferable to refrain from any reference to it. If, on the other hand, you have to deal with the consequences of this event, it would probably be better to restructure the provision so that it can fail. For example, the example in point 3.56 could be reworded as follows: If the investigator provides confidential information to the sponsor during the term of this agreement, then.. In construction contracts, the parties attempt to describe their respective obligations in simple and ordinary terms. If you have any comments or questions about this, please contact: Could Misha`s employer claim: «This is just a mistake.

Mischa knew what that meant? Sure, but they would be 100% wrong; The words used are the words used. There are no «redundancies» in the law. And the employer also drafted the agreement and is certainly bound by it – exactly as it is written. MAY. To be authorized; to be free; to have the power. 2. Whenever a law commands to do something for the good of justice or the public good, the word may be the same as it should be. For example, 23 H. VI. says that the sheriff can take bail, it is designed to do so, because he is forced to do so.

Karth. 293 Salk. 609; Skin. 370. 3. Words must and may be interpreted in the general acts of the legislature or in private constitutions; 3. ATK. 166; But the construction of these words in a single act depends on the circumstances.

3 ATK. 282. See 1 vern. 152, cases. 142 9 Porter, r. 390. Almost all jurisdictions have decided that the word «shall» is confusing because it can also mean «may, will or shall.» Legal reference works such as the Federal Rules of Civil Procedure no longer use the word «shall.» Even the Supreme Court has ruled that if the word «shall» appears in legislation, it means «may.» «I know you think you understand what you think I said, but I`m not sure you realize that what you heard isn`t what I meant.» May primarily serve as discretionary mediation, as in The indemnified party may appoint a separate co-counsel at its own expense. (Read the full article «Construction contracts and arbitration provisions: is the word «may» mandatory? Maybe! » …). When we explained the «trick» to Misha and showed her the words of her agreement, she saw that she was 100% free to change jobs whenever she wanted. She was 100% relieved: her biggest obstacle in transitioning from her current job to a better job suddenly magically «disappeared,» simply because she was wise to «skill – turn target.» Keep in mind that the employer is not required to offer benefits, social assistance programs or bonuses to its employees.

This is most often seen in new start-ups, where, for example, employer-provided health insurance and other benefits may or may not be offered for years, even if employees expect to receive such benefits. Ouch! On the other hand, if the employment contract says, «The employee may be entitled to a bonus at the end of the year,» I would much prefer it to say «the employer pays» or «the employee will be preserved.» I think that a «mandatory» premium obligation would certainly be in the best interests of the employee and therefore it would be worthwhile to seek clarification in the wording. The same goes for «Employee can expect a promotion.» It is not an obligation, but a mere expectation that is neither mandatory nor necessary. In this case, I would prefer the words to say, «The employee GET a promotion.» Is it possible that Mischa`s employer simply erred in formulating this provision? Sure, but not at all likely. In several other places in Misha`s employment contract, even in the «adjacent» paragraphs, we find the words «shall,» «shall,» «accept,» and «is obligated,» all of which are «binding.» If the author of Misha`s employment contract knew how to use the words «shall, will, shall, accepts and is obliged to do so», he certainly could have used any of these words or phrases in the termination provision above. Dr. Bruce V. CorsinoFAAT Plain Language Program ManagerPhone: 202-493-4074Email: bruce.corsino@faa.gov RECENT CASE STORIES*: Misha contacted our office to create a «resignation plan.» She had been offered a great new job and wanted to make sure she «cut her ties» without «burning her bridges.» Her main concern was that her new employer would not be able to keep her job offer open as long as she agreed to fire her current employer at least 90 days in advance. She felt like she was between the proverbial «hammer and anvil.» Here`s an even simpler (but not necessarily better) way to avoid this ambiguity: convey the possibility of something happening, rather than using power (if it`s not certain the event will happen) or expecting (if it`s likely that the event will happen and a party is the subject of the sentence). For example, when parties use the word «shall» in their agreement, they generally understand that the stated obligation is mandatory. Or if the parties use the word «may» in their contract, performance is permitted or optional given the clear meaning of the word.

Originally published by Matthew DeVries on Best Practices Construction Law Blog. © 2012, Alan L. SkloverAll rights reserved. Commercial Use Prohibited. The word «may» is an expression of the possibility, a permissive decision, to act or not, and generally implies some degree of discretion. This contrasts with the word «shall», which is generally used to indicate a mandatory provision. As explained in this Texas case, the word «may» in a written instrument is generally interpreted as permissive, but may be interpreted as mandatory depending on the context in which it is used. As a general rule, it is only if it is necessary to give effect to the clear intention of the legislature that it can be interpreted in a compelling manner. The truth is that employers often use the «can-do» trick to give the employee the false impression: that he or she MUST comply with a long notice period if the employer knows that he or she is NOT obliged to do the same if he or she is fired.