Does It Make Sense to Require Someone to Use “Efforts” to Complete Something in a Reasonable Time?

One reason I keep an eye on Twitter is that occasionally random bits of interesting drift by. For example, behold the following:

First, the issue isn’t “best efforts” being combined with “reasonable.” We all know that in a rational world, best efforts means  the same thing as reasonable efforts. We also know that you shouldn’t use best efforts, as it creates confusion.

And you can ignore “commercially,” as it’s redundant—one considers the circumstances of the transaction when determining whether someone has complied with an efforts obligation.

Instead, the issue is whether it makes sense to impose an obligation to use efforts to complete a project in a reasonable time. I say that it does, as you’re dealing with two components:

First, what kind of obligation is being imposed? An efforts obligation—the contractor doesn’t have a flat obligation to complete the project; instead, it has to do its best.

And second, how soon does it have to complete it? The drafter could have specified that the project has to be completed in a specified period—for example, ten days. Or it could have used promptly. Instead, by referring to “a … reasonable time,” it’s leaving things more open, in that the question becomes when the project has to be finished, instead of (in the case of promptly) how fast the contractor can do the job.

So “a … reasonable time” leaves things very uncertain. But otherwise, there’s nothing illogical about imposing an obligation to use efforts to complete a project in a reasonable time.

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.

14 thoughts on “Does It Make Sense to Require Someone to Use “Efforts” to Complete Something in a Reasonable Time?”

  1. I think it’s redundant. A reasonable time implies the use of reasonable efforts. If the thing could be done in less time, but it would require more-than-reasonable efforts, then that would be something less than a reasonable amount of time. You couldn’t very well say someone failed to do something in a reasonable time because they failed to expend more-than-reasonable efforts.

    • Mike:

      I think you might be missing the possibility that it is not possible, using reasonable efforts, to complete the project at all. It may usually be redundant, but not always.


        • Mike:

          Do you really want to rely on what a court thinks about the common law defense of impossibility, as opposed to just negotiating for reasonable efforts? Having your obligation limited to reasonable efforts means that the other party, if a normal business person with no knowledge of that defense, is less likely to sue in the first place.


          • You’re basically making the argument that it should read, “Contractor will complete the project in a reasonable time, *if possible.*” My point is just that you could go around sprinkling “if possibles” all over the contract if you really wanted to, but it seems a bit unnecessary as impossibility is already a black letter defense. If you’re worried that a businessperson may not know about the defense, I suppose you could attach a primer on basic contract law to every contract. Personally, though, I don’t see the need to clutter up my contracts with legal truisms, just for the edification of non-lawyers who might be reading them.

          • I belatedly join in. (I’ve been too busy making gingerbread men.)

            Mike, I gather that you’re proposing that you can omit efforts if you’re providing for something to be done in a reasonable time. The problem with your suggestion is that efforts isn’t a function of potential impossibility; instead, it’s a function of lack of complete control. It doesn’t make sense to impose on Acme an obligation to do something that it doesn’t have complete control over. Instead, I’ll say that Acme has to try its darnedest.

          • Chris is the one who brought up impossibility. I see that as sort of a separate issue.

            I guess my point is that reasonable efforts is already intrinsically wrapped up in the concept of reasonable time–it’s the touchstone for how a reasonable time is defined.

            In other words, let’s say a court were trying to determine what a “reasonable time” meant in a given context. The parties would present evidence as to how long it would take a company like Acme to complete the project using reasonable efforts. If Acme showed that it had used reasonable efforts and completed the project in X days, I don’t see how the plaintiff could claim that X days was nonetheless not a reasonable time. If Acme could show they used reasonable efforts, then X days would be, by definition, a reasonable time.

            That’s the way I see it anyway, but maybe I’m not grasping your point. Are you saying that the basis for determining a reasonable time might be something other than how long it would take a similarly-situated company employing reasonable efforts?

          • I don’t want to impose on someone an obligation to do something in a reasonable time if performing that task isn’t entirely in their control. I’m not comfortable relying on “a reasonable time” to capture the notion that someone else is calling the shots.

          • Fair enough. Sounds like we don’t quite see eye to eye, but interesting discussion anyway. Thanks for responding!

          • I’m curious; how does one prove that the time wasn’t reasonable, or that “best efforts” were used? In construction, bidders are able to determine if the time allowed for completion is adequate. Granted, there are always exceptions, but it’s not uncommon for contractors to claim they didn’t have enough time, even though there was nothing preventing them from working twenty-four hours a day. I can see there would be more problems on short projects, but not so much on a project that will take a year or more to complete.

      • Chris,

        I’m having trouble imagining a realistic contract example of what you suggest, a project that cannot be completed using reasonable efforts, but can be completed using unreasonable efforts.


        • Wright:

          Surely the same objection could be raised against every use of reasonable efforts? “I will use reasonable efforts to make the ramp to your door be a 1-in-10 gradient.” Well, the tree is in the way, so it’s got to be 1.1-in-10 because going around it will triple the cost.


          • Not a great example; if the problem is that obvious it should be addressed before entering a contract. Having said that, problems that are not so obvious are common.

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