Does Reasonable Endeavours Mean Anything?
A favorite legal drafting trick is to play around with the strictness of obligations. Rather than say Fred must deliver the rocks to Barney within 7 days, why not say that Fred will use reasonable endeavours to deliver the rocks to Barney within 7 days. If the contract says “must” then Fred’s failure to deliver will be a clear breach. If it says “reasonable endeavours” then Fred may well get away with delivering late, or not at all.
In light of a recent English decision on the meaning of “reasonable endeavours”, we now present a menu of phrases for your drafting pleasure:
- “Must” is strict. It’s an absolute or strict obligation. You must do it.
- “Shall” is strict too. See “Must”.
- “Best endeavours” is not strict, but you do need to act in good faith, and you do need to do all that a reasonable person reasonably could do in the circumstances.
- “All reasonable endeavours” falls somewhere between “Best endeavours” and “Reasonable endeavours”.
- “Reasonable endeavours” is “less stringent” than best endeavours. It may even be “appreciably less” stringent. It doesn’t require much more than an “honest try”. But it does require more than a dishonest try. You do need to try, a bit.
- “Efforts” is the same as “Endeavours”. You say “reasonable endeavours”, I say “reasonable efforts”. You say “tomato”, I say “tomato”…