The May 16 issue of the Canadian periodical The Lawyers Weekly contains my article With “Efforts” Provisions, Reasonable Is Better Than Best. Go here for a PDF.
It’s addresses the Canadian caselaw, but it should be of interest to anyone who has wondered about how to handle best efforts versus reasonable efforts or any other efforts variant.
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.
I know you will never be persuaded otherwise, Ken, and I’m wary of commenting, but I do think that there is a clear conceptual difference between saying that a standard requires “something reasonable” and saying that it requires “everything except what is not reasonable” (which is essentially the difference drawn in the Canadian cases).
If a person has to make “reasonable efforts” to notify another person of an event, I think the first person would satisfy that by sending an email to an address that he knew was being used 2 weeks ago by the second person. That is a “reasonable effort”, as it is a method of notification that many reasonable people would use.
But if the contract actually specified that the first person not only had to email, but also follow up with a call or otherwise obtain confirmation that the message has been received, would that be unreasonable? Of course not – it is also something that many reasonable people would do. But it is still a higher degree of effort. So it is possible to set a higher standard, within the bounds of what is reasonable, than “reasonable efforts”, and that is how the courts have been interpreting “best efforts”.
That does not address all the problems of “best efforts”, which I am also not very keen on for various reasons, but the idea that it is logically equivalent to “reasonable efforts” has never convinced me.
I’m wary of responding, but that’s what I do, so here goes.
Your example is offered in a vacuum, so it doesn’t work. The urgency of an efforts standard is determined by the context, not by what degree of efforts is specified. For example, one requires that someone use reasonable efforts to do something “as promptly as possible.” Your example has none of that, leaving you with only efforts to fall back on.
You say “that is how the courts have been interpreting ‘best efforts.'” Which courts are you referring to? Not U.S. courts. Not Australian courts. English opinions have been an utter joke, but the 2012 Jet2.com opinion suggests that even English courts have wised up. That leaves you with Atmospheric Diving Systems, the most failed bit of jurisprudence I’ve ever encountered.
I’ll continue working to fine-tune my analysis, but game over, case closed.
You’re right on the first point, but it is a separate issue. Had the term been “reasonable efforts to notify X of the event within 5 business days”, my point would have been exactly the same.
By “the courts”, I am of course referring to “the courts that have taken this view”, rather than all courts. As to whether the jurisprudence has failed or not on this issue, that simply begs the question.
I will say no more on this…!
Your “5 business days” example misses the point: that’s not how you set a benchmark. That’s something I discuss in MSCD.
And what cases are you citing? Atmospheric Diving Systems, even after I’ve shown that its analysis is laughable as a matter of logic?
I’m just saying this to have the last word. After a point, one moves on.
For what it’s worth, I agree with Ken because I think “reasonable efforts” means “all reasonable efforts,” not “something reasonable.”
With that understanding, if “best efforts” means more than “reasonable efforts,” “best efforts” means “beyond reason.”
I’m always happy to have support, although saying that you agree with me on “best efforts” is sort of like saying “I agree that the earth is round”!