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.

14 thoughts on ““Ought””

  1. Ken:

    I have no basis for this, but “ought” carries a connotation of prevailing norms for me, where “should” carries a connotation of of reasonableness. I have no idea why, or where that comes from for me. Prevailing norms and reasonableness may end up in the same place, of course.


    • Ken:

      I should add that those words only carry those connotations for me when used prospectively. When used retrospectively, the feel the same — second guessing decisions already made based on how bad the outcome was.


      • Ken:

        I don’t think so. It’s more like telling children how they “ought” to behave — it’s a norm, not a duty. I’d recognize “ought” as implying duty in, say, a tract on philosophy. But if I signed an installation contract requiring the installer to install the thingy as it ought to be installed, I’d assume that was a reference to the documentation that the manufacturer provides, plus prevailing norms for thingy-installation. I would not think it meant “reasonably.” It would be more like a reference to industry standards. One more reason to say what you mean, rather than hope to get there by implication.


  2. “Reasonably” does strike me as redundant and somewhat jarring. At any rate “should have known” is a reference to a legal concept, not really amenable to modification by contract.

  3. 1/ Agree that Garner has it wrong, that ‘should’ and ‘ought to’ are for practical purposes perfect synonyms, and that ‘ought to’ — especially in the negative contraction ‘oughtn’t’ — is a bit antiquated, especially (according to the OED) in North America.

    2/ But what troubles me is the role in contracts, if any, of weak expressions of appropriateness, suitability, and fittingness (‘soft’ duties). Who’s to judge and by what standard?

    3/ If A empowers B to sign on A’s behalf any documents that A ‘should’ sign, the grant is fuzzy. My abbreviated redaction of the third boxed example substitutes a ‘hard’ duty for a ‘soft’ one:

    ‘Each Obligor hereby appoints the Trustee that Obligor’s attorney to do anything this Indenture or the Security Agreements *obligates* the Obligor to do’. (Forgive the anthropomorphism.)

    4/ ‘Soft’ duties seem out of place in contracts: ‘The Customer shall keep confidential Privileged Information and any other information that *should* [says who?] remain confidential’? That kind of drafting stores up trouble.

    5/ On whether ‘should reasonably’ is redundant, I say ‘technically not, but adding “reasonably” doesn’t solve the underlying uncertainty problem’.

    6/ Here’s my reasoning: ‘should’ sets up a duty, albeit a ‘soft’ one. Every duty has a source. ‘Should’, standing alone, fails to indicate the source of the duty. ‘Should reasonably’ adds a source — the ‘reasonable person’ standard. That addition makes ‘reasonably’ not redundant.

    7/ But that’s not much progress. A party under a duty to keep secrets is no better guided by ‘information that *reasonably* should remain confidential’ than by just ‘information that should remain confidential’. Both formulas beg for disputes.

      • If Acme ‘shall’ execute and deliver an assignment to Widgetco, that’s a ‘hard’ duty. If Acme ‘should’ execute and deliver an assignment to Widgetco (meaning it would be appropriate, suitable, or fitting for Acme to do so), I call it a ‘soft’ duty. Nothing metaphysical, just shorthand.

  4. I think I actually lean toward Garner here. “Ought” carries a sense of moral obligation to me, while “should” sounds more like a pecuniary obligation . If I say “We should go to lunch sometime” it carries a sense of debt, but if I say “We ought to visit Grandma more” it carries some sense of moral duty. (But, as you point out, relying on connotations in contract language might not be the “gold standard” for clarity :-)

  5. If ought = should (or indeed, “reasonably should”), why should 2 words replace one, merely because that one word is “somewhat dated”?


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