In the course of discussions in London, it became clear to me that I have few supporters in suggesting that drawing a distinction between endeavours standards—the US equivalent is efforts—is an invitation to confusion. The prevailing view is that of course best endeavours imposes a more exacting standard than does reasonable endeavours.
I’m happily sticking to my guns, for two reasons.
First, those who advocate useful distinctions between endeavours standards don’t do so as the result of analysis that takes into account how best endeavours is used in standard English. Instead, they simply repeat the conventional wisdom. In other words, the distinction exists … because lawyers say it exists! Consistent with that, no one has attempted to challenge the analysis of endeavours provisions contained in this article. That’s because it’s beyond reasonable challenge.
And second, sticking with my recommendations allows the parties to a contract to express clearly whatever level of efforts they have in mind. Where can you find my recommendations? Well, they’re in the articles I link to above and below, in MSCD, and in the 33—oops, make that 34 now—blog posts on the subject that I’ve published since the third edition of MSCD came out. A definitive take will have to wait for the fourth edition.
An important piece of evidence corroborating my position is that although in the United States most people who work with contracts buy into the notion of a distinction between efforts standards, US courts have, with one voice, rejected the idea. In other words, courts have acted as a bulwark against applying to contract language a legalistic literal-mindedness that makes no sense in terms of how people actually speak and write. The same goes for courts in Australia.
By contrast, courts in England and Canada have endorsed the notion of a distinction between endeavours (efforts) standards. (Go here for my article on the Canadian caselaw.) That cannot be explained as arising out of differences in how best endeavours (best efforts) is used in standard English in England and Canada as opposed to the United States and Australia.
I’ve been forthright in criticizing US judicial opinions that offer misbegotten analyses of contract language. But there’s no particular pattern to such opinions. By contrast, the English caselaw on endeavours and on represents and warrants (discussed in this article) shows that compared with US judges, English judges are particularly prone to buying into legalistic distinctions that don’t exist in standard English. That makes a mockery of the notion of looking to the plain meaning of contract language.
(By the way, in this 2014 post I recommend that English drafters do away with the fusty endeavours in favor of efforts.)
2 thoughts on “My Position on “Endeavours” Is a Lonely One, and That’s OK By Me”
Having watched the discussion, I thought that Justice Flaux, the chief proponent of the “best means more than reasonable” standard, needed to be challenged to state more than the abstractions he kept clinging to. How much more, exactly, does someone need to do to comply with one standard and not the other? Bankrupt the party? But that’s not an “endeavours” standard, that’s a “hell-or-high-water” standard. Is that really what the situation calls for? Nobody ever wants to get specific, and that’s because the distinction, as you have said, falls into incoherence when subjected to close analysis.
The evergreen persistence of the opposing view is probably based on the correct intuition that apart from contracts, one can use ‘reasonable’ to mean ‘fairly good, but not very good’, as in ‘The boy answered him in reasonable French’. Not precise enough (without definitions) to be useful in contract drafting.