A Prototype of a New Definition of “Reasonable Efforts”

MSCD 8.56 suggests that you might want to use the phrase reasonable efforts as a defined term:

Even though the phrase reasonable efforts doesn’t pose the same risk of confusion as best efforts, you might want to use it as a defined term. Doing so could assist a court and might help the parties better understand the implications of using reasonable efforts. And in the definition the parties could fine-tune their understanding of what reasonable efforts means.

So MSCD 8.57 offers the following as a “core” definition:

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.

Well, I suggest that we consign that definition to the dustbin of history and use instead this one, or something like it:

Reasonable Efforts” means, with respect to activity conduct under this agreement, the efforts that a reasonable person in the position of the applicable party would use to engage in that activity conduct effectively.

Here’s why:

  • For a definition to apply in all contexts, it has to take into account that reasonable efforts isn’t used exclusively in obligations. Namely, it could also be used in a conditional clause (If Acme failsi to use reasonable efforts …) or even in a statement of fact (Acme states that it has used reasonable efforts …).
  • Saying the applicable party reflects that reasonable efforts isn’t limited to obligations. And it has the further advantage of being generic.
  • Use of reasonable efforts isn’t just about getting something done as quickly as possible. It might not even relate to accomplishing a specific task. Instead, it might be a matter of maintaining a status, or stopping something from happening. It would make sense to elucidate in the reasonable efforts provision the parties’ expectations regarding the activity in question.
  • Initially I used activity, but I replaced it with conduct, as that could encompass doing something or not doing it.
  • A reader pointed out that if reasonable efforts is used in a conditional clause or statement of fact, it could apply to a nonparty, for example a subsidiary. If that’s the case, you could add or nonparty to my definition.
  • An earlier version of this definition had the phrase taking into account the circumstances tacked on at the end, but I decided it was surplussage: saying in the position of the applicable party achieves the same effect.

This definition could be customized for a particular contract. For example, if reasonable efforts is used only in obligations. And if all instances of reasonable efforts apply to only one party.

So, readers, do your darnedest.

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.