How to Turn “Reasonable Efforts” into What You Thought “Best Efforts” Was

OK, so we’re all agreed that best efforts promises more than it can deliver—to avoid confusion and avoid wasting time in negotiation theater, use just reasonable efforts.

You don’t agree? Oh, I think you’ve come to the wrong place; go here for the Flat Earth Society.

Relax! I’m joking. To show you that I feel your pain, I’ll try once more to show you that your hankering after best efforts is misplaced. Not only is the ostensible distinction between best efforts and reasonable efforts impossible as a matter of semantics and contract law, it’s also unnecessary.

First off, you can build a sense of urgency into a reasonable efforts provision, for example by adding as promptly as possible. Or you could build that notion into a definition of reasonable efforts:

Reasonable Efforts” means, with respect to a given obligation, the efforts that a reasonable person in [the promisor’s] [Acme’s] position would use to comply with that obligation as promptly as possible.

But wait, there’s more! If circumstances warrant it, you could add the following to preclude the party under the obligation from whining that the efforts demanded of it have become unreasonable:

Acme acknowledges that the money that a reasonable person in Acme’s position would be willing to expend on, and the personnel that a reasonable person in Acme’s position would be willing to devote to, complying with its obligations under this section 11 are unlimited.

This is in effect the opposite of a carve-out; see MSCD 8.61. (Should I call it an “add-in”?)

I made this last bit up just now, so I’d be pleased to hear your comments.

Posted in Selected Usages | 4 Comments

  • AWrightBurkeMPhil

    If you are going to go wild, go wild clearly: the final verb in the “unlimited” acknowledgment should be “are,” not “would be”: “the money … and the personnel … *are* unlimited.” Otherwise you have a matrix clause without the conditional clause (or more simply a missing “if” clause).

    Also, the provision uses language of declaration to impose an obligation, one that need not be stated in terms of reasonableness: “If necessary, Acme shall expend unlimited money and devote unlimited personnel to complying with its obligations under this section 11.”

    Since reasonableness is a necessarily vague concept, a drafter should try to cut it down where it cannot be eliminated: “If necessary to comply with Acme’s obligations under this section 11, Acme shall expend all reasonable sums. Necessary expenditures totalling $100,000 or less are not unreasonable.”

    That leaves open for argument whether expenditures greater than $100,000 are reasonable, but makes clear that below that, Acme must spend the money. “Never let the perfect be the enemy of the good.”

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

      Regarding “are” instead of “would be,” you’re right! I’ve changed it. It was late. I was tired. I had just eaten a spicy dinner …

      Yes, I was aware that there were a number of ways to skin this cat. (Yuck.) Thank you for offering an alternative. I will ponder.

  • Chris Lemens

    Ken:

    If you intend your “Acme acknowledges” paragraph to be in the definition of “Reasonable Efforts” (which, I think you do not, based on the reference to “this section 11″), you would want to re-write it to work inside a definition, by using “includes” rather than by an acknowledgment or, in AWrightBurke’s suggestion, by using language of obligation.

    Here are a couple of options, both of which are pretty stark from the promisor’s perspective:

    “Reasonable Efforts” includes spending unlimited money and devoting unlimited personnel to achieve the objective.

    “Reasonable Efforts” includes spending money and devoting personnel to achieve the objective, without any specific limits on the amount of money spent or personnel time devoted.

    Chris

  • Vance_Koven

    Well, you have certainly clarified things in that last one. So well that nobody would ever agree to it!