Warning: this post is for hard-core efforts fans only.
As part of my frenzy of rooting around on EDGAR yesterday looking for efforts anomalies, I saw this:
The phrase best efforts possible is an oddity. It and the variant best possible efforts occur only a handful of times on EDGAR, mostly in contracts drafted in countries where English isn’t the main language. (This example is from a contract between two Chilean banks.)
But it got me thinking. I suggest that adding possible after best efforts changes the semantics. Instead of the “try hard” meaning of best efforts, the meaning expressed by best X possible prevails. Whereas in best efforts the word best has been “delexicalized” (see my 2019 article about that), in best X possible the word best expresses the dictionary meaning of best—”exceeding all others.” It’s as if in this context best has been relexicalized (to invent a word).
But that’s neutralized by the next word, possible. It’s a vague word, meaning that the realm of what’s possible is limited to what’s reasonable in the circumstances.
With vagueness, one way or the other you’re ultimately left sticking your finger in the air, trying to decide what’s reasonable.
[Go here for the first post and here for the third post in this trilogy.]
Ken:
I don’t think that “best efforts possible” would end up approximating “reasonable efforts” in anything like the majority of courts. I think it invites the plaintiff to identify an additional effort that the defendant did not take. That additional effort has only to be possible, not reasonable. And yes, this does go to the absurdity of the plaintiff arguing that the defendant should have made unreasonable efforts. I think it boils down to something closer to promising to reach the result, unless it isn’t possible.
Chris
Ken:
Oh, yeah. That wouldn’t change your recommendation. Either use reasonable efforts or make it a straight promise, with the always-present defense of impossibility.
Chris