In the early days of my rummaging through the entrails of contract language, I logged a lot of time with the second edition of Bryan Garner’s Dictionary of Modern Legal Usage. My recent visits have been fewer, but I did turn to the third edition, now called Garner’s Dictionary of Legal Usage, to see if it had anything to say about best efforts.
Sure enough, there’s an entry entitled best efforts; reasonable efforts; commercially reasonable efforts; good-faith efforts. What does it say? Since you ask, here’s the opening sentence:
The orthodox view is that a contractual provision requiring best efforts imposes extraordinary duties of assiduity: a very high standard of care, regardless of whether the required efforts might be commercially unreasonable. A provision requiring reasonable efforts is generally thought to impose a lesser standard of diligence.
“Orthodox” and “generally thought” in which constituency? Practitioners, sure, but certainly not judges. U.S. courts have in effect said, with essentially one voice, that all efforts provisions mean the same thing—reasonable efforts. For more on that, see the relevant chapter in MSCD.
The entry continues:
As noted, the majority view is for courts to consider best efforts as imposing a higher standard than reasonable efforts. But others treat the two as synonyms.
The majority view of courts? Maybe in England (here), Canada (here), even Singapore (here), but not in the U.S. Not even in cases that are reputed to stand for the distinction, a notable example being Bloor v. Falstaff Brewing.
Here’s the next sentence in the entry:
Perhaps the safest course is, when possible, to use a best-efforts provision when insisting on an opposite number’s performance—and to use a reasonable-efforts provision for one’s own client’s performance.
You might recall my post entitled “Active Drafting: A Short Manifesto,” in which I compared passive drafting to active drafting. I use the phrase “passive drafting” to describe the behaviors associated with uncritical copying of precedent contracts. One of them is a kind of learned helplessness when it comes to handling terms of art, something I discussed in this 2013 post. This recommendation by Garner has that quality about it.
To his credit, Garner acknowledges that the two phrases promote uncertainty. But instead of suggesting an approach that allows you to avoid any confusion, he recommends that you opt for whichever interpretation favors your side of the transaction. Then, presumably, you hope for the best. That explains the despairing tone of the next sentence:
Yet the phrases are fuzzy, the judicial decisions irreconcilable, and the effects admittedly uncertain.
I suggest that you not follow Garner’s recommendation. It encourages people to invest in the notion of a valid distinction between efforts provisions. That leads to time wasted in negotiation theater. And it interferes with a meeting of the minds, leaving open the possibility of dispute. In particular, it can lead to the potential mischief of two efforts standards in one contract.
You don’t have to accept this sort of uncertainty as an unfortunate feature of the landscape. Instead, it’s the drafter’s (and reviewer’s) responsibility to eliminate it. You aren’t limited to having to make the best of whatever the courts and conventional wisdom drop on your plate. Instead, you can take control and establish your own meaning.
Most of you will have already heard too many times my active-drafting take on efforts, but here goes anyway:
The confusion surrounding best efforts is inevitable, as the ostensible distinction between best efforts and reasonable efforts is unworkable. It doesn’t work in terms of idiom—in standard English, promising to use best efforts simply means that you’ll try hard, taking the circumstances into account. And it doesn’t work in terms of contract mechanics—seeking to impose an obligation to act more than reasonably is equivalent to seeking to impose an obligation to act unreasonably. So what do you do? You shun best efforts, as it promises more than it can deliver. You do that even in jurisdictions where courts have tried and, inevitably, failed to come up with a rational distinction. At the same time, you pay attention to broader issues in drafting efforts provisions: it’s not just about what phrase you use. For example, if you want to you can even make reasonable efforts mean what you thought best efforts meant, as I noted in this post.
Here’s how Garner closes out this entry:
For a useful analysis of these problems, see Kenneth A. Adams, A Manual of Style for Contract Drafting 133–47 (2d ed. 2008).
I’m pleased to have Garner point his many readers to something I’ve written. But even though he says my analysis is useful, you wouldn’t know it from this entry in Garner’s Dictionary of Legal Usage. If you’ve invested heavily in a given approach, you might fail to recognize alternatives that are sufficiently different as to be, yes, disruptive.