“Very Best Efforts”

In twenty years of exploring efforts variations, somehow I never got around to considering very best efforts. *whacks self upside the head*

Here are some examples from EDGAR:

WHEREAS, the Company desires to provide the Executive with a bonus upon the occurrence of certain events in order to induce his continued service with the Company and to encourage him to exert his very best efforts toward either the growth of the Company or the completion of a potential change in control of the Company.

CombiMatrix Corporation, a Delaware corporation (the “Company”) considers it essential to the best interests of its shareholders to induce certain employees to continue their position with the Company and to encourage such individuals to exert their very best efforts in connection with a Qualifying Transaction.

Subject to the terms and conditions of this Agreement, Buyer shall direct its very best efforts to cause Buyer, its officers, directors, employees, accountants, consultants, advisors and agents, to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement.

Without prejudice to the legal and statutory obligations and responsibilities, each Executive undertakes: … To serve NPC, Nova OpCo, Cnova and/or any of its Affiliates and Subsidiaries, and to exert their very best efforts in the performance of their duties, exclusively so as to promote the business and interests of NPC, Nova OpCo, Cnova and/or any of its Affiliates and Subsidiaries, as applicable; …

Meizler undertakes to exert its very best efforts to promote, market and distribute Brainsway’s proprietary Deep TMS Devices within the Territory for patients suffering from any Approved Indication under the trademark of Brainsway.

That’s pretty much all that’s on EDGAR. Note that the first two examples are general expressions of intent and the last two involve parties from non-English-speaking countries. In terms of its appearance on EDGAR, very best efforts is marginal.

But here’s a random Google example:

In consideration of said appointment, Representative hereby agrees to exert its very best efforts during the term of this Agreement to perform service and/or maintenance of the Products in the Territory.

And here’s an example from caselaw (Badger Pharmacal, Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 623 (7th Cir. 1993)):

WPC, a Wisconsin corporation, is the inventor of “Disposer Care,” a cleaning powder for kitchen sink garbage disposers. In 1986, WPC entered into an exclusive marketing agreement with SGM Group, Inc. (SGM), under which SGM would market and sell Disposer Care. According to the agreement drafted by WPC, SGM agreed to purchase all of its requirements of Disposer Care from WPC, and to “utilize its very best efforts to advertise and promote” the product.

Hey, here’s an instance of very best endeavours:

Caisley Eartag Limited (hereinafter referred to as “the Company”) will always use its very best endeavours to satisfy all the requirements of the customer but all quotations are made and all orders are accepted subject to the following terms and conditions:

So I don’t think we can ignore very best efforts entirely, although I don’t think I’ll include it in the MSCD matrix of efforts permutations. (Go here for an early version.)

So what does one make of very best efforts? If you’re the sort who thinks all best efforts imposes a more onerous obligation than does best efforts, then presumably you’re going to say that very best efforts does too. After all, different words require different meanings, and very means “extremely”, so …

But if you have a trace of semantic acuity, you’ll be aware that instead of changing meaning, words sometimes add a rhetorical flourish. In this context, I suggest that very simply adds a measure of reassurance. It tends to be invoked in contexts where someone’s feelings are at stake. That sort of nuance has no place in the limited and stylized world of contract language.

An example that comes to mind is the mawkish Hallmark tagline, “When you care enough to send the very best.” Feast your eyes on the video below.

As always, the sensible thing to do is be specific where possible, and otherwise use only reasonable efforts.

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.