How to Turn “Reasonable Efforts” into What You Thought “Best Efforts” Was

OK, so we’re all agreed that best efforts promises more than it can deliver—to avoid confusion and avoid wasting time in negotiation theater, use just reasonable efforts.

You don’t agree? Oh, I think you’ve come to the wrong place; go here for the Flat Earth Society.

Relax! I’m joking. To show you that I feel your pain, I’ll try once more to show you that your hankering after best efforts is misplaced. Not only is the ostensible distinction between best efforts and reasonable efforts impossible as a matter of semantics and contract law, it’s also unnecessary.

First off, you can build a sense of urgency into a reasonable efforts provision, for example by adding as promptly as possible. Or you could build that notion into a definition of reasonable efforts:

Reasonable Efforts” means, with respect to a given obligation, the efforts that a reasonable person in [the promisor’s] [Acme’s] position would use to comply with that obligation as promptly as possible.

But wait, there’s more! If circumstances warrant it, you could add the following to preclude the party under the obligation from whining that the efforts demanded of it have become unreasonable:

Acme acknowledges that the money that a reasonable person in Acme’s position would be willing to expend on, and the personnel that a reasonable person in Acme’s position would be willing to devote to, complying with its obligations under this section 11 are unlimited.

This is in effect the opposite of a carve-out; see MSCD 8.61. (Should I call it an “add-in”?)

I made this last bit up just now, so I’d be pleased to hear your comments.

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.