Let’s start with what we know: The notion of a hierarchy of efforts standards is nonsense. It’s inconsistent with English usage, semantics, and how contracts work. For more, see my 2019 law review article. (According to the Delaware Chancery Court, it’s “The most thorough analytical treatment of efforts clauses.”)
But some drafters are so taken by the notion of a hierarchy of efforts standards that they’ve doubled down on it by applying it to words other than efforts.
On EDGAR, I’ve found contracts containing the equivalent of an efforts provision, but using an alternative noun:
Using such alternatives would by itself be an annoying display of needless variety. It’s best to stick with the sensible conventional way to express a given meaning in contracts, instead of opting for unorthodox alternatives.
But it gets worse! Drafters are prone to incorporating in such efforts alternatives the notion of a hierarchy of standards.
Consider this example:
And this one:
And this one:
But unlike the phrase best efforts, it isn’t idiomatic to refer to taking best measures, best steps, or—gawd help us—best action. The drafters have in effect attempted to create an idiom, then subvert it, so as to mimic the way drafters dreamed up a hierarchy of efforts standards.
Seeing as US courts have declined to recognize a hierarchy of efforts standards, it’s hard to see them recognizing the hierarchies suggested by these preposterous variants. But English courts might be up for it, given that they’ve shown themselves to be semantically bankrupt in interpreting endeavours provisions.
There’s also the issue of adding all, commercially, and reasonable into the mix, but that’s a different topic.
[Go here for the second post and here for the third post in this trilogy.]
1 thought on “Back to “Efforts,” Part 1: Dreaming Up Other Hierarchies”
Two loose thoughts on or near the topic:
1/ I wonder whether the verbs would ever matter: take action(s), make arrangements, use means, take measures, use methods, take precautions, follow procedures, take steps. The issue disappears if one sticks to ‘make reasonable efforts’.
2/ If the other side sent me a first draft using one or more needless ‘efforts’ variants or attempts at an ‘efforts’ hierarchy, and I wanted to reduce negotiation time, I would probably try inserting a short definition of the objectionable phrase(s), along the lines of ‘Take all reasonable best action necessary’ means ‘make reasonable efforts’. If accepted, the change would not tidy the textual messiness, but it would draw the fangs of ambiguity.