“Every Effort”

Today I was reminded of the phrase every effort. I mention it in this 2004 article, but not in MSCD. Here’s an example from EDGAR:

The Investment Manager represents that it shall make every effort to ensure that the Fund continuously qualifies as a Regulated Investment Company under Subchapter M of the Code or any successor provision.

This phrase serves as a reminder of the role of rhetoric in efforts provisions. More specifically, it reminds one that it’s fatuous to interpret efforts provisions literally. Here are the contortions that the literal-minded would have to put themselves through to do so: “If a provision uses reasonable efforts, it imposes an obligation to act reasonably. If it uses best efforts, it imposes an obligation to, uh, use efforts that are better than reasonable efforts, so you have to try harder. And if it uses every effort, that imposes an obligation to use, uh, every effort! The party in question isn’t allowed to do anything else!” *head explodes*

If you still think that it’s helpful to use efforts provisions to cover a spectrum of onerousness, listen up: In the real world, all efforts variants convey the same meaning, but some incorporate a rhetorical flourish that tells the listener, Hey, I care! Because you can count on people either being oblivious to the semantics of efforts provisions or ignoring them in an attempt to insert unintended meaning into a contract, your best bet is to use only reasonable efforts.

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.