Qualifying “Effort” in Commercial Contracts
Ken Adams has a post up today over at his blog AdamsDrafting in which he explores a disagreement he has with a couple of Calgary lawyers about an aspect of how to draft a duty in a commercial agreement. At the core of the dispute are the meaning and utility of the phrase “best efforts,” and whether or not it imposes a higher obligation than “reasonable efforts.”
Jane Sidnell and Christopher Knight, of Fraser Milner Casgrain’s Calgary office opine in a newsletter [PDF] that “best efforts” is a more onerous standard, while Adams argues that notwithstanding some case law “any attempt to create a coherent distinction between various efforts standards is doomed to failure.”
It’s a civil disagreement and one that’s bound to interest any lawyer whose job it is to nail down as much of the future as possible using only a bunch of words. So make the effort ( — best, reasonable, professionally reasonable, supreme — ) to enjoy Ken’s post.
I can show you judges (past and present) who claim there’s useful, non-redundant, legal content in the phrase “common sense”. (shrug)
The difference is well-established in Canadian law. I explain the difference by saying that “best efforts” may require the expenditure of money; the other “efforts”, including the confusing compromise, “reasonable best”, may not.