Corporate & Securities Law

“Obligate” v. “Oblige”

By Ken Adams

In this comment to a previous post, reader Mark Anderson expressed a preference for saying that parties are obliged to do something, rather than obligated. He suggested that use of the verb obligate is the result of the noun obligation being pressed into service as a verb.

Here’s the opening paragraph of what A Dictionary of Modern Legal Usage has to say on the subject:

oblige; obligate. The differences between these terms lie more in their uses than in their senses. Both words may mean “to bind by law or by moral duty.” In legal contexts, the sense of both words is usually “to bind by law”-obligate occurring more frequently-whereas in lay contexts the sense of moral duty predominates.

Mark is in effect suggesting that obligate is a “back-formation” from obligation. Garner’s Modern American Usage says that back-formations are words formed by removing suffixes-in this case, -tion-from longer words that are mistakenly assumed to be derivates.

Some back-formations, for example donate, are well-established, and I’d hesitate to suggest that obligate is new-fangled. According to H.L. Mencken’s The American Language, it’s been with us for at least a couple of centuries. And The New Fowler’s Modern English Usage says that obligate “was once (17-19C.) standard in [British English] but has retreated into dialectal use, while remaining common (beside obliged) in [American English].”

But one should be careful to distinguish legal and lay uses of the word. The New Fowler’s Modern English Usage notes that “use [of obligate] in law is outside the scope of this book.”

I’m OK with obligate in contracts, and to my ear oblige sounds odd-I associate it with the “moral duty” meaning. For what it’s worth, U.S. drafters feel likewise: obligated occurs in 1089 contracts filed on the SEC’s EDGAR system in the past month, as opposed to 189 contracts using obliged. I’d be interested in a similarly sort-of-empirical assessment from other jurisdictions.

But it’s meaningless to discuss the merits of obligate without considering how it’s used in contracts. I use it very little, as it has no role to play in my categories of contract language. I don’t use it to express obligations-that role is played by shall or must, depending on the context. I use obligate only to refer to obligations created elsewhere in the contract, or in some other contract. For example, in a set of recitals I might say “Under the Widgetco License Agreement, Acme is obligated to … .”

Full post as published by AdamsDrafting on June 24, 2009 (boomark / email).