“Objective” and “Subjective” in “Efforts” Provisions

Apparently there’s no I in team. And there’s no objective and subjective in use and interpretation of efforts provisions.

When I ask seminar participants to tell me the difference between best efforts and reasonable efforts, it’s routine for someone to suggest that the former represents an objective standard and the latter a subjective standard, or vice versa. That question is in fact rhetorical, as the only reasonable interpretation is that both standards mean the same thing. So it comes as no surprise that I can’t think of any way that objective and subjective relate to efforts standards.

First, what do objective and subjective mean? This from an Indiana University website:

Objective refers to objects and events in the world that anyone can, in principle, observe. Subjective refers to feelings and experiences that depend on the individual’s own particular viewpoint and traits.

The first problem with tying best efforts and reasonable efforts to objective and subjective is that nothing in the labels best efforts and reasonable efforts suggests a distinction analogous to the distinction between objective and subjective.

But beyond that, whether someone has expended sufficient efforts is a function of the circumstances—in other words, objective reality. That includes the apparent attributes of whoever is under the efforts obligation, although as we saw in this post you can’t count on courts to take into account factors such as solvency.

I’ve seen nothing suggesting that it would be appropriate to (1) leave it to a party under an efforts obligation to determine whether it felt it had expended sufficient efforts and (2) have courts bound by that determination, no matter how divorced from reality.

So I suggest we can consign to oblivion the notion that objective and subjective play a role in efforts provisions. As usual, I’m open to alternative ideas.

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.