“Efforts” Standards More Onerous Than “Best Efforts”?

The answer to the question in the title is obviously, “What the … !”

But asking that question provides me with another stick with which to beat the notion, expressed in English caselaw (see this post) and newsletters put out by English law firms, that all reasonable endeavours represents a more exacting standard than does reasonable endeavours.

In terms of semantics, the notion is deeply problematic—the all in all reasonable endeavours is simply a rhetorical flourish intended to tell the listener that you care. It’s comparable to the all in with all due respect.

But let’s suspend disbelief. Yesterday, on a whim I searched on EDGAR and found hundreds of examples of contracts that use the phrase all best efforts. If you accept the analysis advanced in English caselaw, then all best efforts represents a more exacting standard than does best efforts.

But wait, there’s more! I also found on EDGAR plenty of contracts that use the phrase very best efforts. Why shouldn’t that represent a third best efforts standard?

So if you follow the logic of the English caselaw, you quickly find yourself in a hall of mirrors.

Yesterday on Twitter I invited suggestions for turbocharged efforts standards. And some people with too much time on their hands heard the call:

  • Dan Schwartz offered absolute best efforts.
  • I countered with five-star diamond best efforts.
  • Dan suggested that you could add a sixth star, offering this as evidence.
  • Aaron Williamson offered bestest efforts.
  • Trying to keep a low profile, Eric Goldman DMed me to offer BFF efforts. Eric, consider yourself outed!
  • And Paco Trouble volunteered super duper best efforts.

Thank you, all. Those suggestions make as much sense as a distinction between all reasonable endeavours and reasonable endeavours.

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.