Now, you probably think it’s all a bit strange to get worked up over a single word – particularly when that word is “may” (and I’m not referring to the month). But last week I was pleased to find a court case dealing with this very word.
You would be surprised at the number of problems that word “may” creates. I run across it most often when I’m helping people like you deal with consumers making claims for defective goods under the Consumer Guarantees Act 1993. The remedies section of that Act begins: “Where a consumer has a right of redress against the supplier ... in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.” The act then sets out remedies for minor defects, alternative remedies for major defects, and consumers’ rights to damages for a reasonably foreseeable consequential loss arising from defects to the goods. Consumers often read the “may” at the beginning of the section as entitling them to choose any other remedies they can think of. And sometimes they have vivid imaginations.
I have always taken the view that if you were entitled to any remedy under the sun, Parliament wouldn’t have wasted its time setting out a whole lot of specific remedies
in the act. So when I heard about a High Court case that actually looked at the effect of “may” I did get excited. In short, the good news was that the court did take this approach. But that is the boring part of this particular case. The interesting part has a rather scary lesson for us all.
The case involved a contract for exterior maintenance of a number of buildings. When a payment was missed, the maintenance company gave notice of termination, which under the contract would entitle it to a considerable sum of money from the customer. In order to claim this money, notice had to be given in writing. The relevant clause said that
notice “may be given by post or hand” and specified the address to which this notice was to be mailed or delivered. However, the maintenance company chose to post the notice to a different address. Problem: if they had not given proper notice under the clause, they were not entitled to the termination sum. Rather a lot of money was at stake. They argued that their customer must have seen the notice, and therefore could not claim proper notice had not been given.
But the Court thought differently: the judge pointed out that two methods for service had been nominated: personal service and service by post. He said “the word ‘may’ governs the right to choose between both but is not otherwise discretionary.” After all, the parties had carefully expressed the notice provision in the contract, and in any case the contract had been drafted by the maintenance company. The notice clause would be meaningless if you could then choose
to do something different. The judge agreed that the contract was terminated, as under New Zealand law cancellation of a contract does not require a specific form of notice. But as the clause under which the special compensation was to be paid did set out specific notice requirements that were not followed, the maintenance company lost out.
Now, that’s all a bit scary, isn’t it! What it means is that if you are required to do something under a contract by giving notice, you should very carefully check the wording of the notice clause, and do exactly what it says. And just be very wary of that little word “may”.
It may get you into quite a lot of trouble. Then again, you may talk to your lawyer…
This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at firstname.lastname@example.org.