In English, “may” and “may not” are words that are commonly used in contracts, together with alternatives such as “has the right to”, “is entitled to”, “shall not” and “must not”.
In Chinese, the equivalent words that are most commonly seen are ke [可], keyi [可以], you quan [有权] and bude [不得].
This column explores the ways in which these words and expressions are used, and identifies some of the drafting challenges that arise.
The English words
The word “may” is often referred to as the language of discretion or the language of permission, as distinct from the language of obligation as in the case of “shall” and “must” (see China Business Law Journal volume 1 issue 5, page 84: Shall or must? Words of Obligation).
The word “may” is commonly used to mean “is permitted”, “is entitled” or “has the right” to do something, either in a contractual or legal sense. For example:
Either party may terminate this contract in the event of a material breach by the other party.
In English, “may” is also used to mean that something is possible. For example:
If the application does not contain all relevant details, the authorities may require [i.e. it is possible that the authorities will require] the applicant to submit a supplementary application.
In common law jurisdictions, disputes have often arisen over the interpretation of the word “may” and whether it actually means “shall” or “must”. This issue arose in the recent UK case of Ener-G Holdings v Hormell .
In this case, the England Wales Court of Appeal considered the use of the word “may” in the context of the following notice clause:
13.1 Notice in writing
Any notice or other communication under this agreement shall be in writing and signed by or on behalf of the party giving it.
Any such notice may be served by delivering it personally, or by sending it by pre-paid recorded delivery post to each party (in the case of the buyer, marked “for the attention of directors”) at or to the address referred in the Agreement or any other address in England and Wales, which he or it may from time to time notify in writing to the other party.
In dispute was whether a notice concerning a claim for a breach of warranties had been validly served when it had been left at the defendant’s premises instead of being handed to the defendant personally. A related question was whether the word “may” in clause 13.2 was intended to be permissive or exclusive; in other words, were the methods of service in clause 13.2 simply two examples of permitted methods of service under the agreement, or were they in fact the only two permitted methods of service?
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.