Ken Adams of adamsdrafting.com emailed me the other day. I’ve enjoyed dipping into his site, even though my area has nothing to do with contract drafting and a relatively small amount of contractual interpretation. I like the overlaying of semantics, rhetoric and practical issues.
Ken pointed me to a piece on an English judgment on ‘best endeavours and reasonable endeavours’. Having read it, I agree that the terms of the distinction drawn by the Judge don’t hold water, but I also disagree with Ken’s view that there is no distinction.
‘Best’ is a superlative. ‘Reasonable’ isn’t. One’s best endeavours would be the best that one could do, whereas reasonable endeavours could well involve a weighing of other factors, e.g. cost, benefit, time, etc., in deciding on what course of action to take.
(Granted, ‘to the best of my knowledge’ is slightly more rhetorical, but the phrase implies that one has examined one’s memory and given active thought to what is being asked, whereas ‘to my knowledge’ carries a lesser sense of examination. However, such being the way of language, ‘to the best of my knowledge’ now carries a sense of evasion and cavilling.)
A parallel could be between a duty imposed by statute and a duty where the statute permits a decision to made having regard to factors x, y and z.
Ken’s suggestion that ‘best’ should be avoided would make absolute sense if one takes ‘best’ as a superlative seriously, precisely because it would imply that considerations of effort against reward or relative likelihood of success should not play a part in a decision on a course of action. Of course, he is also quite right that the Courts are unlikely to adopt such a formulation, but why take the chance?
Ken Adams also asked if I would mention that he will be in London on 17 April, giving a seminar called “Contract Drafting—Language and Layout.” It’s being sponsored by ACC Europe and the International Association for Contract and Commercial Management. Details of the seminar are here.
I did suggest that this might not be the ideal blog to attract contract drafters, but I’m happy to mention it. For a session on drafting, it should be entertaining (in a relative, not absolute sense).
[Edit. As Corporate Blawg comments, he has also just posted on best v reasonable. I am delighted to find that a) we pretty much agree and b) Corporate has given a clear, precise, practical formulation of that which I was dimly groping towards. And he manages to work in a contrast between Jane Austen and Thermopylae. I’d add Thermopylae as being a clear case of ‘best endeavours’, whereas my endeavours to watch Northanger Abbey while blogging were only reasonable, at best.]
Corporate Blawg has also been approached by Ken, and should have read your post before putting finger to key.
Corporate Blawg offers an overly simplistic solution, and creeps back under his duvet of anonymity, until next week when he (hopes to) post on an issue of startling originality.
Best as ever,
CBUK