In my 2019 article, I explain that in the phrase best efforts, the word best has been “delexicalized”—instead of expressing its dictionary definition of “exceeding all others,” in this context it’s used as a rhetorical flourish.
Other phrases that feature the delexicalized best are in the best interest(s) of Acme and to the best of Acme’s knowledge (and variants). I’ve suspected that the legalistic mind might not be able to resist being literal-minded and ignoring delexicalization in this context too. So on Friday, I went looking for proof. And lo and behold, I found it.
Here’s an example featuring best interest, with the word reasonable tacked on the front:
If you extrapolate from efforts logic, presumably the notion is that best interest refers to the interest that exceeds all others; adding reasonable would capture a more reasonable interest. But that’s gibberish, and it ignores English usage—in the best interest of the JV Company means the same thing as in the interest of the JV Company, with best adding a rhetorical flourish.
And here’s an example featuring to the reasonable best of his knowledge:
Presumably whoever added reasonable was concerned that otherwise the officer would permitted to rely only on that part of his knowledge that exceeded all his other knowledge; adding reasonable would allow the officer to rely on less extreme knowledge. Again, this is insane.
So what to do?
You could shrug this off, on the grounds that idiots will always be among us. But one could improve the situation by keeping plastic bags away from babies. In other words, just as I recommend you not use the phrase best efforts, don’t use best in these contexts—it serves as a rhetorical flourish, and contracts aren’t the place for rhetorical flourishes.
[Go here for the first post and here for the second post in this trilogy.]
Hmm, what about the rhetorical usage of “best” in knowledge qualified representations? For example, “to the best of John Smith’s knowledge …” vs. “to the knowledge of John Smith …”?
Arguably, adding “to the best” is a rhetorical flourish here. However, I do think it has better prosody. Plus, often this type of rhetorical flourish is used in contexts where the parties are not really concerned about the representation, but are trying to convince a third-party about their seriousness, e.g. “to the best of John Smith’s knowledge, none of the contemplated actions violate anti-money laundering laws.” Suppose, you genuinely believe that a bank is more likely to agree to service a transaction with this rhetorical flourish; still out of place?
If someone insists on “best”, it’s because they think it expresses a greater commitment. I don’t want to go along with that.