Learning involves relying on others. It’s not remotely feasible for everyone to, uh, do all their own research. Instead, you have to rely on others who really have done research and written it up in a way that makes it accessible.
But who do you rely on? The overwhelming majority of commentary out there isn’t reliable, or it’s lightweight. For example, a longtime reader sent me the March 2022 issue of the Commercial Lease Law Insider (here). The second article, starting on page 5, is entitled ‘Best Efforts’ vs. ‘Commercially Reasonable Efforts’: What the Difference Is and Why It Matters. (Yes, you know where this is going.) In the first paragraph it says, “While these phrases sound interchangeable, they have potentially significant variances in meaning that may prove decisive when the desired outcome doesn’t come to pass and the question becomes whether the tenant’s effort to make it happen were [sic] adequate.” And it goes downhill from there, offering the notion, accepted by many who work with contracts, that it makes sense to think in terms of a hierarchy of efforts provisions.
Whoever wrote the article—no author is named, which is always a bad sign—felt no need to offer evidence. Instead, they offer generalizations. In the absence of evidence, I’m comfortable saying that this article is wildly inaccurate. I offer instead my 2019 article Interpreting and Drafting Efforts Provisions: From Unreason to Reason (here).
But this is where it gets awkward. Why should you rely on my article and not on an article in the Commercial Lease Law Insider? After all, they’ve been around for 14 years. They have a board of advisors.
When it comes to deciding who you can rely on, appearances matter—because you can’t do all the research yourself, appearances are all you have to go on. Well, in this case, I hope that what I have to display beats the Commercial Lease Law Insider. For one thing, the Delaware Court of Chancery—the leading business-law court in the land—has called my article “The most thorough analytical treatment of efforts clauses” and has called me “The leading commentator on efforts clauses.” (See this 2020 blog post.) Then there’s MSCD, there’s my list of articles, there’s the training I offer, there’s all the stuff I’ve done over the past 20 years (here).
So I repeat advice I’ve given previously: If you’re uncertain how to say something in a contract, look at what I say and ignore everyone else. My advice is comprehensive, and it’s practical. If there are any risks or uncertainties, or if my approach might raise eyebrows, I’ll tell you about it. If you have my book but it doesn’t have what you’re looking for, contact me.
Relying on others for guidance requires a leap of faith. With my advice, you’re safe making that leap.
If something I drafted caused a problem, I would much rather defend it on the basis that I followed the recommendations of the leading work in the field of contract drafting, fourth edition, than that I followed an anonymous article in a trade periodical (or that I cut and pasted from another deal, or that ‘we’ve always done it that way’, or it’s ‘tested’ language, or ‘I gotta be me’).