“Obligation” and “Duty”

I thought it time to hoist out of the comments a discussion of obligation versus duty. Here’s what reader AWB said in this comment:

By the way, any time is a good time to reconsider your preference of “obligation” (ten letters, four syllables) over “duty” (four letters, two syllables). They’re equally Latinate, but “duty” is easier to chew and has fewer calories.

Here’s what reader Westmorlandia said in response:

I think “duty” is used more commonly to refer to fiduciary duties, duties of care and so on—non-contractual law that requires certain standards of behaviour rather than specific actions. I don’t often see those called “obligations”.

I also very rarely see contractual obligations referred to as duties.

I suspect there was once a clearer linguistic distinction than there now is, though this is just a hunch. The conceptual distinction is very useful in law, and I like the idea that the language can cater for it. That said, even if this were the case, obviously few people are aware of the distinction or use it consistently (at least consciously). And it may not quite be as simple as that. But I am fairly sure that the terms are not actually used synonymously, even in general parlance.

And here’s what Garner’s Dictionary of Legal Usage says:

obligation; duty. Broadly speaking, the words are synonymous in referring to what a person is required to do or refrain from doing—or for the performance or nonperformance of which the person is responsible. But there are connotative nuances. An obligation is normally an immediate requirement with a specific reference <his child-support obligations> <Burundi’s obligations under the treaty>. …

A duty may involve legal compulsion and immediacy, but the word carries an overlay of a moral or ethical imperative <parental duties> <fiduciary duties>. More specifically, duty = (1) that which one is required to do or refrain from doing, esp. as occupant of some position, role, or office; or (2) any one of a complex of rights and standards of care imposed by a legal relationship. Sense 2 appears primarily in tort law, in which writers use duty only to mean that there could be liability.

So Westmorlandia and Garner are basically of the same view. And now that I’ve gotten around to thinking about it, I share that view. That’s why I refer to the implied duty of good faith but refer to a party’s obligations under a contract.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

8 thoughts on ““Obligation” and “Duty””

  1. I am fleeing the field of battle, loosing the following Parthian shots over my left shoulder as I gallop away:

    1 Connecticut state cases have 1982 instances of “contractual obligation” and 582 instances of “contractual duty.” “Duty” may be the less frequent usage, but it’s by no means a strange visitor from the planet Tort.

    2 The “duty” of good faith and fair dealing is implied in every contract, as Ken notes. How odd to contend, in effect, that “‘duty’ is rare in contracts, except for every contract there is.”

    3 Of course synonyms have different “connotative nuances.” But I dare say the use of “duty” instead of “obligation” would never cause a contract problem or make a contract case come out differently. If that’s so, and standardization of expression is the ideal, why let inertia drive out the somewhat less used but more concise word?

    4 This is mean, but the quotation from Bryan Garner is not his best work. “Broadly speaking, the words are synonymous” implies that narrowly speaking they’re not. But that’s wrong, because differing nuances (even “connotative” nuances — do words ever have another kind?) don’t keep words from being synonyms.  Example 2: Bryan has called “only” the most misplaced word in English, but here he says 
    “writers use duty only to mean that there could be liability” when he clearly means “writers use duty to mean only that there could be liability.” There are more problems with the passage Ken quotes, but I don’t want to labor the point at Bryan’s expense that the argument from authority is only as good as the authority is on the point in question.

    5 I can’t help noting Ken’s generous heart in citing Bryan even though Bryan dismissed a position of Ken’s without offering reasons. Puts me in mind of the saying, “Few people can see genius in someone who has offended them” –Robertson Davies (BTW, happy Civic Day to Canadian readers).

    Okay, off to my castle to sulk for a while.

    • Thank you for persevering!

      Regarding your point 1, I did a search of all U.S. caselaw for the past year. The phrase “contract duty” or “contractual duty” occurred in 1,292 opinions; the phrase “contract obligation” or “contractual obligation” occurred in 3,531 cases. So I draw the same conclusion you do. Of course, how judges write is only marginally relevant. (While I’m at it, “contractual” is a clunky adjective, no?)

      Regarding your point 2, the implied duty of good faith expresses an “ethical imperative”; instead of being something specific you can point to, it’s in the air. So I don’t have a trouble distinguishing it from the notion of obligations.

      Your point 3 is a good one. Heck, I’m forever saying that you don’t have to stick with the traditional word if the context ensures that using an alternative, simpler word would be benign. But change comes at a cost. I’m throwing enough important change by people that it might be self-indulgent to do away with a reasonable and somewhat accepted distinction just so I can use a slightly shorter word.

      Your point 4 makes a great point, one I’ve been sniffing around. Yes, “argument from authority is only as good as the authority is on the point in question.” I’ve established to my satisfaction that Bryan Garner isn’t a reliable commentator on contract language. Is it intellectually dishonest of me to cherry pick his analyses if I’m citing him just to say “this guy agrees with me”?

      Regarding your point 5, it’s easy to be generous when you’re right!


      • Ken:

        This might not be helpful, but I like referring to anything that the parties to a contract undertake voluntarily as “obligations” and anything that gets imposed on them as a consequence (e.g., from regulation, or the duty of good faith and fair dealing) as “duties.” I suppose there are cases where that is not clear and, if those were important, I might not use this distinction in that contract.


        • Chris: That’s consistent with my referring to the implied duty of good faith yet using the word “obligations” for what’s imposed by contract provisions. But it would be counterproductive to rely on that distinction at all or to highlight it in a way that readers would notice, as they might well wonder why it’s significant. Ken

      • Enough from me (for now) on obligation and duty. New topic: euphony. How funny that you think “contract duty” is easier on the ear than “contractual duty”! I think the former is clunky and the latter graceful, partly for metrical reasons, and partly because adjectives are in general smoother than nouns-used-as-adjectives. 

        That triggers another thought: you have said that the language of contracts is different from the language of persuasion, and that’s surely true up to a point. But contracts are negotiated, and a spoonful of sugar helps the medicine go down. 

        My contracts teacher told us always to volunteer to do the drafting, because many issues become apparent only in the writing, and the one who does the drafting may be the first to spot an issue. This offers the drafter the advantage of resolving the issue in favor of her client, sometimes so smoothly that the counterparty’s lawyer does not even spot the issue. 

        Part of smooth writing is euphony; cacophony draws notice to the ugly provision. In that context, drafting, or perhaps I should say first-drafting, can be an occasion for persuasive writing, and an ear for iambic pentameter, for example, can be a tool of persuasion. Not the only tool, but one.

  2. The Restatement (Second) of Contracts § 1 defines contract as follows. “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” This means that when the promises (covenants) are made, a duty to perform flows from those promises. The promise comes first and then the duty. The Restatement uses “obligation” synonymously with “duty.” Restatement (Second) of Contracts § 1, Comments a and b; Restatement (Second) of Contracts § 2, Comment b.

    • Dear Tina, I’m with you: if words are synonymous (have the same meaning), prefer the shortest, unless other reasons outweigh that rule of thumb. “Connotative nuances” aren’t a sufficient reason. Cordially, Wright

    • Tina: Thanks for pointing that out. Ultimately, it doesn’t matter from a substantive perspective which word you use in a contract: it’s not a potential source of confusion. So the only guide is how people actually use the words, in that one might as well reflect any prevailing usage. In that respect, I have no reason to think that whoever is behind the Restatement has any particular credentials to offer in that regard. So I’m going with my own impressions, since Garner provides a measure of support. Ken


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