Please Welcome Another Component to the “Efforts” Provision Family

In this April 2017 blog post I unleashed on the world my chart showing the different components of efforts provisions. Well, it’s time to add another column to that baby, unfortunately. That’s because I followed up on something I buried in this September 2019 post on the LegalSifter blog, namely an instance of the phrase mediation efforts.

That offered the promise of two kinds of adjectives. There’s what I’ll now call “qualitative adjectives,” including best, reasonable, good-faith, and less obvious ones like diligent. And now we have what I’ll call, at least for the moment, “activity adjectives.” That sent me on a hunt. Here’s what I have so far.

In addition to mediation, there’s *drum roll* sales:

Followed by remediation:

 

And last, for now, we have development:

This last example is my favorite, because it features the defined term Commercially Reasonable Development Efforts, which is so fab it needs its own initialism, CRDE. I hope that soon we’re are talking about CRDEs.

Here’s what use of activity adjectives entails: instead of saying reasonable efforts to sell, you say reasonable sales efforts. Well, I say that’s pretty fukin stupid. First, because it gives us yet more abstract nouns. Boo! And second, because efforts provisions always involve Acme using reasonable efforts to do something! So inevitably, you have in the second example “undertake such commercially reasonable remediation efforts … to remediate“! And in the third example, you have “use Commercially Reasonable Development Efforts to develop“!

So do everyone a favor and don’t use activity adjectives in efforts provisions. The sheer fukin stupidity is all getting too much. I need hardship pay.

(Bonus: Note how our new fave defined term, CRDE, goes into excruciating detail regarding what the efforts involve. Efforts shouldn’t have anything to do with whatever this involves! It’s specific, not vague! *beats head on desk*)

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.