In this 2019 post I suggest that not much is to be gained by arguing which is better, English drafting or US drafting. But I did point out one noteworthy distinction:
Even if you accept that a given kind of U.S. contract is likely to exhibit more dysfunction than an equivalent piece of English drafting, that’s perhaps offset by the English legal profession’s systemic problems with contract interpretation. When interpreting contract usages, English courts are prone to drawing distinctions that have no basis is reality, and English law firms exhibit a forelock-tugging obeisance in accepting whatever courts have to say.
In that post I went on to cite as an example of this phenomenon how the English legal profession deals with endeavours provisions. Well, the English endeavours gibberish keeps on coming, most recently in the form of Brooke Homes (Bicester) Limited v Portfolio Property Partners Limited and Others [2021] EWHC 3015 (Ch) (here). It was issued earlier this month by the High Court of Justice, one of the Senior Courts of England and Wales.
I learned of this opinion from a tipster, who sent me a link to this blog post by the law firm CMS. It does the usual forelock-tugging by saying how the opinion “provides some much-needed guidance.” What a laugh.
The phrase at issue was all reasonable endeavours. Here’s what Mr. Hugh Sims, QC, sitting as deputy judge, had to say:
Fleshing out some of the content of the duty further here, active endeavour is required on the part of the parties where all reasonable endeavours are required: passivity or inactivity is likely to be construed as a potential breach. And if a reasonable course is identified by the claimant then the defendant can be required to explain why it was not required to do so.
What does any of this mean! Hugh Sims, QC, is floundering in vagueness. In particular, has any humanoid ever previously uttered the phrase “active endeavour”? Jesus wept.
While we’re at it, here’s how the judge summarized English caselaw on endeavours provisions (emphasis added, citations omitted):
First, so far as the obligation to use all reasonable endeavours to enter into a final binding Agreement which captured the Heads of Agreement, it might be said that there are three types of endeavours clauses. The first is simply to use reasonable endeavours, which might mean if one reasonable path is taken then the obligation is discharged. The second is to us [sic] all reasonable endeavours. This is normally interpreted as requiring all reasonable paths or actions to be exhausted. In this respect it may be said there is little difference with such a clause and duty to use best endeavours. Some best endeavours clauses might however be said to require, depending on their context, the sacrifice of some commercial interests on the part of the party, whereas an obligation to use all reasonable endeavours is probably less likely to do so. Ultimately however, even these categorisations do not tell the whole story, since the precise requirement will depend on the precise wording and context in which that wording arises. So even with “all reasonable endeavour clauses” some subordination of commercial interests may be required. The mutual benefit clause in this case has some bearing in this context.
Emphasized in bold italics are weasel words suggesting that the judge, and the English legal profession in general, have no idea what’s going on. They’re clinging to a rattletrap train clattering down a track to nowhere, leaking steam and blowing gaskets.
My 2019 law-review article on efforts provisions (here) cheerfully demolishes the English caselaw on endeavours, then throws it in a wood chipper. (The Delaware Chancery Court called my article “The most thorough analytical treatment of efforts clauses” and called me “The leading commentator on efforts clauses.” See this 2019 blog post.)
Here’s what that article says about all:
Despite caselaw suggesting otherwise, in the phrase all reasonable efforts the word all is a rhetorical flourish. Like the word best in best efforts, the word all is delexicalized in all reasonable efforts and so does not affect meaning. The same is true of use of all in with all due respect and all best wishes. When the U.S. Supreme Court used the phrase “all deliberate speed” in Brown v. Board of Education to direct how quickly schools had to integrate, no one suggested that the word all affected its meaning. It’s not surprising that all is prone to being delexicalized—it’s the 43rd most common word in modern English.
Why am I so persistent about this endeavours stuff? Because contracts matter, and justice matters (at least to some extent, for the time being), so it follows that rational contract interpretation matters too. And rational contract interpretation requires paying attention to some external realities, such as semantics and English usage.
The legalistic bent of English courts is also on display in how they approach the phrase represents and warrants (see this 2015 article), their position on nominal consideration (see this 2016 blog post), and the significance attributed to condition and warranty (see this 2018 blog post).
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[Updated 1420 Eastern Time, 27 November 2021]
If you’d like to see what it takes to defend the English approach to endeavours, check out my futile exchange on Twitter today with @artmarkham (it starts here).
In case anyone inclined to follow the legalistic-minded over the cliff would find this information useful, the problem with the legalistic approach is twofold. First, it’s at odds with English usage; that sets you up for inescapable confusion. And second, it forces the legalistic-minded to find occult meanings for best, and commercially, and all, and whatever meanings are available make no sense in the context of contract obligations, the result being the sort of blather you see in the Brooke Homes opinion. For more, see my 2019 article.
I’m acutely aware that lawyers are prone to slapping their own meanings on words or phrases. Heck, the blog post immediately before this one (here) considers one such example of that—how intellectual-property lawyers repurposed the phrase in the public domain to mean, among other things, that something doesn’t have copyright protection. Sometimes you have to accept that the new meaning is with us. But when it comes to endeavours (and efforts) provisions, the legalistic gloss is so hopelessly inept that the only rational choice is to kick it to the curb.
By the way, the fix for all this is simple: use only reasonable endeavours. Or reasonable efforts, if you want to escape the Scott-of-the-Antarctic vibe of endeavours.
