In this comment, longtime reader Vance Koven suggests using Acme shall seek to instead of Acme shall use reasonable efforts to. He says that they’re equivalent, in that any court would apply a reasonableness standard to an obligation stated using seek.
I understand Vance’s point. In fact, I’m going to go further. Why use the somewhat dated and literary seek? One could come up with any number of alternatives, some of which are noted in MSCD ¶ 8.5, but I suggest that the best option to achieve Vance’s objective would be Acme shall try to.
Vance’s suggestion is appealing. After all, reasonable efforts is a legalistic, unidiomatic usage invented as as a less-misleading alternative to best efforts.
But I’m not inclined to follow Vance’s suggestion.
That’s not because a given court might apply a good-faith standard instead of a reasonableness standard. Who knows what the implications of that might be—the distinction seems more theoretical than practical.
Instead, it’s simply that in a world where efforts standards are generally accepted, I suspect that using instead try would result in an unhelpful degree of confusion and suspicion.
Do remember, though, that I used “seek” in a context where the party doing the seeking was not really in control of the outcome, and in tandem with a clause that says what happens if Ye Do Not Find (remembering that “dost” only goes with the informal “thou”). In that case, the heavy lifting is done by the second of the pair.
And since courts regularly make such a hash of all efforts provisions, forcing closer attention through different terminology is a way to avoid ritualistic thinking (you know, like “will be liable” instead of “indemnify,” or “states” instead of “represents and warrants”). But still, .
I’ll take a Gallic shrug over some alternatives that come to mind!
But more generally, are you now in the business of cueing up my blog posts? Next week I’ll do something about limiting what’s riding on “efforts”.
If you start with the observations that (1) ‘reasonable efforts’ was invented to improve on ‘best efforts’ and that (2) using the modifier ‘reasonable’ is part of the effort to abolish or narrow the meaningless ‘spectrum’ of modifiers used in ‘efforts standards’, you may overlook the question whether ‘reasonable’ itself is necessary.
Look at the several more or less equivalent verbal ways of imposing a duty with respect to a goal beyond the obligated party’s entire control: aim, attempt, endeavour, essay, make an attempt, make attempts, make an effort, make efforts, seek, strive, try, venture, undertake.
Notice that the temptation to insert a ‘reasonableness’ modifier occurs not with the standalone verbs (aim, endeavour) but only with the phrases involving a noun (make attempts, make efforts).
Why give in to the temptation? All the options share an implied ‘reasonableness’ limitation.
In other words, if you decide that despite the awkwardness Vance rightly pointed out, ‘make efforts’ is the best of the options, why throw in ‘reasonable’?
If the answer is that eliminating a redundancy dear to drafters of traditional contract language
‘would result in an unhelpful degree of confusion and suspicion’, I say, with a Gallic expression of alarm, ‘What have you done wiz Ken Adams?’
Ken:
A query: Suppose that Acme is contracting for Ben to do something. Ben’s really cheap, but he’s incompetent. And cheap is more important that competent to Acme. Ben has no free-standing duties of competence, so the only relevant legal standard is the contract.
In that scenario, I can see a difference between a subjective good-faith standard — because Ben will really try, but he’s incompetent — and an objective reasonable-efforts standard — because Ben’s less competent than the reasonable person.
For this kind of situation, would you rely on just saying good faith, or would you instead do something to signal how unusual the case is, using less ritualistic words and describing the reality? Like “Acme acknowledges that Ben is totally incompetent to perform the services Ben is to perform. Acme takes the risk that Ben fails to perform the services, so long as Ben really tries.”
Chris
Chris,
During Ken’s silence, may I offer a view?
Whether Ben ‘really tries’ is subjective: only Ben knows.
To create an objective test for an unusual contract, one must either
(1) have Ben to certify that the effort was real and trust Ben’s veracity, or
(2) enlist the legendary reasonable-person-acting-reasonably and impute knowledge of Ben’s limited abilities to her.
Such provisions would have this logical structure, if not these words:
(1) ‘Ben shall try to do X. Ben’s certificate that he genuinely tried will discharge that duty’.
(2) ‘Ben shall try to do X. If a reasonable person aware of Ben’s abilities would conclude that Ben genuinely tried to do X, Ben’s conduct will discharge that duty’.
-Wright
Hunh?
I don’t buy the notion of an objective and subjective standard. What efforts are required is based on the circumstances, and that includes the competence of whoever is under the obligation. Expecting someone who is less than competent to perform like someone who is competent wouldn’t make sense.