“Ought”

Today I encountered use of ought in the Uniform Commercial Code, so that sent me scurrying to EDGAR, where I found 143 contracts filed in the past year that use ought.

Garner’s Modern English Usage says the following about ought:

Ought should be reserved for expressions of necessity, duty, or obligation; should, the slightly weaker but more usual word, especially in speech, expresses appropriateness, suitability, or fittingness.

After an exchange of comments with Chris Lemens, I think Garner is mistaken. If someone tells me, “You ought to get that roof fixed,” there’s no sense of duty or obligation. I’m not even sure that “necessity” captures the meaning: it might be a good idea that I do something, but that doesn’t mean that I need to do it.

So I suggest that ought expresses the meaning that Garner attributes to should, with the only distinction being that ought is somewhat dated.

But either way, instead of ought I’ll use should, as in the following examples:

… and in any event within five (5) Business Days after the Borrower or any other Group Company knows or ought reasonably to [read should reasonably] have known of such occurrence; …

The Customer acknowledges that the disclosure of any Proprietary Information, or of any information which ought to [read should reasonably] remain confidential, will immediately give rise to continuing irreparable injury to State Street inadequately compensable in damages …

Each Obligor hereby irrevocably appoints the Trustee to be the attorney of the Obligor in the name and on behalf of the Obligor to execute and do any deeds, transfers, conveyances, assignments, assurances and things which the Obligor ought to [read should reasonably] execute and do, and has not executed or done, under the covenants and provisions contained in this Indenture or the Security Agreements …

… all title deeds and agreements to which it is a party and all other documents owned by it or which ought to [read should reasonably] be in its possession or held unconditionally to its order are in its possession or so held;

Any taxes that have been withheld or deducted from any payment or distribution in respect of the Securities, or any taxes that ought to [read should reasonably] have been withheld or deducted from any such payment or distribution that have been remitted to the relevant taxing authority, shall not be considered to be an amount that the Trustee or the Holder of any Security receives for purposes of this Section.

Any thoughts on my use of the word reasonably in these examples? Is the concept of reasonableness inherent in should, making reasonably redundant? Or is use of reasonably an appropriate way to make sure that the intended meaning is clear?

[Updated 21 December 2016: I don’t address in this post whether it would be preferable to find some way to eliminate ought/should entirely.]

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.