How English courts and English lawyers approach use of the phrase best endeavours and its variants in contracts is wrongheaded. It’s conducive to confusion and dispute in contracts, it brings into question the semantic competence of English courts, and clients should consider taking it into account in assessing their English lawyers.
I said as much in 2014, in an article in Solicitors Journal, but if you’re looking to change anyone’s mind about contract language, you have to be prepared to repeat yourself. Compared to that account, this article offers additional evidence on historical use of endeavours variants.
The best-known English case
In Rhodia International Holdings Ltd v Huntsman International LLC  EWHC 292 (Comm), the court considered the basic question asked by those who encounter endeavours variants: What’s the difference between best endeavours and reasonable endeavours? Judge Julian Flaux had this to say:
As a matter of language and business common sense, untrammelled by authority, one would surely conclude that [“best endeavours” and “reasonable endeavours” did not mean the same thing]. This is because there may be a number of reasonable courses which could be taken in a given situation to achieve a particular aim. An obligation to use reasonable endeavours to achieve the aim probably only requires a party to take one reasonable course, not all of them, whereas an obligation to use best endeavours probably requires a party to take all the reasonable courses he can.
This view reflects the belief of many who work with contracts. But suggesting that different endeavours standards are onerous to different degrees requires ignoring English usage and the logic underlying contracts.
Best doesn’t change the meaning
The Oxford English Dictionary offers as the definition of the phrase to do one’s endeavour(s) “to exert oneself to the uttermost; to do all one can (in a cause or to an end),” and it notes that the phrase is archaic. It offers quotations using to do one’s endeavor(s) from around 1500 to 1873.
In the same entry, The Oxford English Dictionary also offers quotations featuring variants of the phrase using the word best. One is a line from Shakespeare’s Merchant of Venice, “My best endeuours shall be done heerein.”
The only reasonable explanation of this use of the word best is that it’s a rhetorical flourish that doesn’t change meaning, just as adding the word best to It’s in your interests (It’s in your best interests), to my knowledge (to the best of my knowledge), and use your judgment (use your best judgment) doesn’t change their meaning. Instead, use of the word best simply signals a measure of formality. It’s consistent with this interpretation that in the entry for to do one’s endeavour(s), The Oxford English Dictionary doesn’t distinguish quotations that use best from those that do not and doesn’t comment on use of best in some quotations but not in others.
Doing your utmost requires only that you be reasonable
As for the level of exertion inherent in to do one’s endeavour(s), look to how modern equivalents are understood. If a 56-year-old man—a lawyer with no heroic sporting deeds in his past—says, “In the 2017 Garden City Turkey Trot, I’ll do my best to improve on my 2016 time,” he’s not committing himself to hiring a running coach, strength coach, nutritionist, and physiotherapist and embarking on a full-time regimen involving high-altitude training, bariatric chambers, cutting-edge footwear, and the like. Instead, he’s telling himself and anyone else idly listening that considering his age, physique, family obligations, work commitments, and his other interests, he’ll try hard.
Expressions of an intention to do one’s utmost, however they’re worded, make sense only if the speaker and listeners assume a level of effort that’s reasonable, considering the circumstances.
Reasonable Endeavours isn’t everyday English
According to a Google Ngram of best endeavours and reasonable endeavours showing the frequency with which those phrases occur in Google’s British-English corpus of digitized books between 1800 and 2000 (see the image below), use of best endeavours rose to a peak around 1820 then gradually decreased, presumably due at least in part to increasing popularity of efforts at the expense of endeavours (discussed below). By contrast, reasonable endeavours is essentially absent from the Ngram until after 1980, when the frequency with which it appears starts creeping up. But even by 2000, best endeavours still occurs much more frequently than does reasonable endeavours.
The links to Google Books in that Ngram suggest that whereas best endeavours occurs in a variety of publications, reasonable endeavours occurs primarily in legal and governmental publications. Evidently, it has never been used in everyday English. It appears that reasonable endeavours developed as an alternative to best endeavours, but one that conveys the same meaning. The most plausible explanation is that because lawyers are prone to literal-minded hairsplitting, writers of legal texts thought it appropriate to come up with an alternative to best endeavours. Presumably the aim was to avoid the suggestion, prompted by the dictionary definition of best as “exceeding all others,” that best endeavours requires endeavours that are somehow better than other endeavours.
So best endeavours is the only phrase used in everyday English, and it makes sense only if understood as connoting conduct that is reasonable in the circumstances. Reasonable endeavours has never been used in everyday English and is best understood as an alternative to best endeavours introduced by the legal profession, to avoid having the idiomatic meaning of best endeavours disregarded by literal-minded judges and lawyers.
It follows that there’s no basis in English usage for suggesting that a best endeavours obligation is more onerous than a reasonable endeavours obligation.
In contracts, more than reasonable is unreasonable
There’s another reason why this distinction doesn’t make sense. If the distinction were valid, then anyone under an obligation to use best endeavours would be at risk of having to act more than reasonably—in other words, unreasonably—to comply with that obligation. Nothing in contract law suggests a standard requiring that one act unreasonably to comply with an obligation: contracts default to reasonableness in the absence of specificity. Furthermore, one would have no basis for determining at what point a best endeavours obligation had been complied with—just how unreasonably would one have to act to meet that standard?
Part of a bigger problem
The rationale offered in Rhodia International Holdings Ltd isn’t the only unfounded assessment of endeavours to be found in English caselaw. Other cases holds that all reasonable endeavours implies something more than reasonable endeavours but less than best endeavours. Those cases, too, ignore English usage.
The English caselaw on endeavours is skimpy and recent, but it shows that English courts are willing to reach conclusions that have no basis in reality. As such, this caselaw exemplifies the no-smoke-without-fire school of contract interpretation — the notion that if people believe that different endeavours standards are onerous to different degrees, there must be something to it.
The obliviousness on display in English caselaw on endeavours is also evident in cases on the significance of use of represents and warrants (and representations and warranties) in contracts (see here). Under English law, courts interpreting a contract aim to take the objective view of a reasonable person, given the context in which the contracting parties made their agreement. That’s not the approach on display in cases on endeavours and on represents and warrants. These cases happen to have come to my attention; caselaw on other topics might manifest the same problem.
It’s notable that US caselaw on efforts provisions — efforts is the US version of endeavours — and US caselaw on represents and warrants is free of the problems that afflict the corresponding English caselaw. Broadly speaking, those who work with contracts in the United States are as prone to the same misconceptions on those subjects as those who work with contracts in England, but in the United States the courts act as a bulwark against those misconceptions. In England, the courts indulge in those misconceptions, further muddying the waters. Anyone selecting English law as the governing law of a contract should be aware of that.
Staying out of trouble
In drafting contracts, generally one can circumvent problematic caselaw on confusing contract language by opting to state the meaning clearly. In the case of endeavours provisions, that can be accomplished by using only reasonable endeavours; by setting standards for measuring performance; perhaps by using reasonable endeavours as a defined term; and where appropriate, by using carveouts as a hedge against extreme interpretations of what’s required to comply with a reasonable endeavours obligation.
But the safest course is to limit your use of endeavours provisions. They’re vague, and as such they can lead to dispute and to unpredictable outcomes at trial. Use endeavours provisions only when a party’s lack of control means that imposing a flat obligation on that party wouldn’t make sense.
While you’re at it, you might want to consider joining American and Canadian drafters in using efforts instead of endeavours. The word endeavours is dated: it has a stiff-upper-lip, Scott-of-the-Antarctic vibe about it. A Google Ngram showing use of efforts and endeavours in Google’s British-English corpus of digitized books (see the image below) suggests that endeavours is headed for oblivion. The modern choice is efforts.
Assessing your lawyers
The analysis of endeavours standards offered by English law firms exhibits a forelock-tugging deference to what courts have had to say on the subject. It’s not poor scholarship so much as an absence of scholarship. No one has attempted to rebut the arguments I made in my article in Solicitors Journal and reiterate here. When I’ve discussed this issue with members of the English legal establishment, they’ve responded with smug complacency. Don’t be silly! Everyone knows that different endeavours standards impose different levels of onerousness.
So if you’re not the one drafting and instead you rely on English in-house lawyers or English outside counsel, you might want to ask them about using different endeavours standards to impose obligations that are onerous to different degrees. If they think it’s a helpful practice, you might want to set them straight. Or replace them.
Kenneth A. Adams is a consultant and speaker based in New York. He is author of A Manual of Style for Contract Drafting (4th ed. 2017). On 6 November 2017, he’s presenting a “Drafting Clearer Contracts” seminar in London with UCL Faculty of Laws and on 7 November, he’s taking part in “Modern Contract Drafting: Improving Content, Upgrading Your Process, and Overcoming Inertia,” a panel discussion in London hosted by UCL Faculty of Laws.