My article Interpreting and Drafting Efforts Provisions: From Unreason to Reason is in the summer 2019 issue of the journal The Business Lawyer, published by the Section of Business Law of the American Bar Association. (PDF here.)
The article refers to instances of the phrases best efforts and reasonable efforts the Corpus of Contemporary American English, or COCA. Go here for an Excel spreadsheet of all instances of best efforts; go here for a random sample of 100 of those instances; and go here for all instances of reasonable efforts.
The article says that no instances of best efforts in the random sample were from a legal context. The only one that came close was a reference to a best-efforts securities offering. I decided to consider that as pertaining to business, not law.
Hi Ken, the ‘PDF here’ link doesn’t seem to be working. Would you try to fix it, please. Many thanks.
As noted in the bold-italics sentence in brackets at the top of the post, that article hasn’t been published yet :-)
Ha ha, thanks! I suspected that might be the case, and the ‘PDF here’ might be a placeholder in anticipation, but I thought I’d ask, as I didn’t want to miss out :)
So it took me a few sittings to finally read through it, and I am happy I did. The collection of cases uncovered by your research is even more formally out in the open for someone else to read and challenge by producing other cases. If they choose to engage instead of merely throw out platitudes (“Different words have different meanings!”), then you’ve given them a roadmap on how to construct a meaningful argument.
Thanks for sharing the link.
(I’ll admit I’m probably biased by your citation of Professor Hillman in n171: he was my contracts professor.)
Finally, I continue to find it amazing that there are this many provisions that we’ve used for *decades* without really having paid attention – individually – to what we were writing.
I hope it wasn’t too much of a slog!
The caselaw is secondary: having other courts joining English and Canadian courts won’t change the evidence on usage and semantics.