English Contract Drafters Should Consider Using “Efforts” Instead of “Endeavours”

Generally, English contracts refer to endeavours rather than efforts. I’ve long waged a guerilla campaign against the conventional wisdom that different endeavours standards convey different meanings (for example, see this 2012 post), and I’ll continue to do so, but that’s not today’s topic.

Instead, it’s something even more annoying: I’d like now to suggest that English drafters stop using the word endeavours in contracts and join the United States and Canada in using efforts instead.

I know that endeavours has a true-brit, Scott-of-the-Antarctic vibe about it, but that’s just the problem. Endeavours is stodgy, and English authors have been turning away from it. Observe the following Google Ngram of endeavours versus efforts in British English:

Of course, as we’re dealing with English courts here, it’s legitimate to wonder whether an English court would decide that efforts and endeavours mean different things. That’s presumably what prompted Clifford Chance, in an analysis evidently intended for the Japanese market (available here), to say the following:

Also, please note that the majority of English case law looks at the interpretation of phrases using “endeavours” rather than “efforts”. Consequently, for greater certainty of interpretation of such terms, it is better to frame obligations under English law as requiring the use of ‘endeavours’ rather than ‘efforts’.

But if you use only reasonable efforts, and if you use it in the context of a fully thought-out provision that, among other things, establishes a standard for measuring performance (see MSCD for more about that), it would require utter semantic derangement to think that efforts means something different from endeavours.

By the way, I know that Australian contracts use endeavours too, but I’m not sure whether that’s the general practice. If you have views on that, I’d be happy to hear them.

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If you’re an English contracts professional and you don’t find the above analysis entirely loathsome, you might be interested in attending my 3 November “Drafting Clearer Contracts” seminar at University College London. Go here for more information.

Posted in Selected Provisions | 5 Comments

  • Chris Lemens

    Ken:

    Lies, damn lies, and statistics. In your case, “loathsome,” “derangement,” and “evidently” according to Ngram. Physician, heal thy archaisms!

    Chris

    • Chris Lemens

      And here’s the chart. I hope.

    • http://www.adamsdrafting.com/ Ken Adams

      Yikes! I’ve never seen it demonstrated so clearly that my vocabulary can be a little … offbeat. But what the heck is wrong with “evidently”? I suspect that your Ngram simply demonstrates that we’re now a bunch of shambling semiliterates. And note that I used my Ngram to demonstrate relative popularity, not to blacken anyone’s reputation! :-)

      • Mark Anderson

        In the words of Bertie Wooster, “I could see that, if not actually disgruntled, he was far from being gruntled”.

  • Westmorlandia

    I don’t think any English lawyer or judge would think that “efforts” or “endeavours” implied anything different – indeed, I was taught at law school that there was no difference, though I never had any occasion to look into whether there was anything to the contrary in the case law.
    I think Clifford Chance are just being conservative – why not use the usual one in order to completely eliminate any risk of some judge behaving oddly?