Reader Larry Bell pointed out to me that the April 2008 issue of Corporate Counsel’s Quarterly contains an article by the publisher’s editorial staff entitled “Best Efforts Clauses.” I’m afraid that I can’t provide a link, as I have only a hard copy.
When it comes to guidance on drafting usages, I’m not particularly a fan of big-is-better, and this article is a case in point. It weighs in at 37 pages, and most of it consists of an autopsy of relevant caselaw.
Ultimately, what matters is what the authors make of the caselaw. In that respect, this article is profoundly unimpressive. Here’s one sentence from the conclusion:
We believe we could all agree that, intuitively, “best” is somehow “better” than the other two [i.e., good faith and reasonable efforts], but we are unable to find any authority that would aid in negotiation or litigation should the meaning of those obligations be called into question.
You believe that “we could all agree” that a best efforts obligation is more exacting than a reasonable efforts obligation? Speak for yourself! I, for one, disagree. And you were unable to find any support? What a surprise! Well, don’t let that bother you …