Best reasonable efforts

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We are eternally grateful to Ms Van der Leyen and the magnificent legal eagles in the employ of Astrazeneca for making plain the torture we commercial lawyers endure daily — torture of prose, patience, and common sense — as we quietly, diligently birth commercial legal agreements that shelter an ungrateful public from harm. No-one banged pots for us.

These eminence grises have, too, opened up a new route on the rock-face of epistemological doubt that besets my learned friends and I. You would think, after all this time, that particular mountain would be tamed by now, wouldn’t you? To be sure, mostly it is — the pitch has a smooth, entropic flatness suitable only for skilfully tedious legal eagles to nest in.

So this is special: this is like finding a new, hitherto unseen direttissima; a hidden chimney; a traverse of the gods. Exit cracks leading, we hope, to the summit of Mount Certainty and not a death bivouac.

So what is this new face? We have all heard of “best efforts”: you must pull out all the stops. It must be a blinder. You must leave everything on the pitch, but no-one expects you to be a superhero.

We have all heard of “reasonable endeavours”, too. That is a softer commitment. It admits of some mortal weakness and human frailty, but at least requires a jolly good old go.

They are different standards. There is clear water between them. So what should we make of mingling them? What is a “best, reasonable effort”? This is a Cunisian paradox. As Cunisian as one can be.

It’s hard to follow but, then, the JC’s old eyes grow dim. His knees are bent. His only thought is, why stop here? Why not make it a party? A partaaaaayy. Once you have committed yourself to full blooded discombobulation, why not go the whole hog, grandstand a bit with some triple negatives and all sorts of celery?

“The parties shall have an absolute obligation, to be exercised in a commercially reasonable manner, to use their best reasonable efforts unless, acting in good faith, it would not be materially unreasonable not to do so, provided that there shall be no liability in the absence of gross negligence, fraud or wilful default.”

There. That ought to do it.

See also

• Best efforts
• Gross negligence and its related concept, worst reasonable efforts
• Commercially reasonable manner
• Bob Cunis