Best efforts and reasonable efforts, a rhetorical flourish?

The EC and Astrazeneca are disputing about the meaning of the term “best efforts” in the vaccine supply contract.  This has a special resonance for me as I’ve recently read  Kenneth Adam’s “A manual of style contract drafting”  where he advises against the use of the term “best efforts”: I agree with his description of it as a rhetorical flourish. It tells one contract party that the other party wants them to believe it will do its best but is otherwise ambiguous.

The problem of the term “best efforts”, which, unlike reasonable efforts, is also used in ordinary speech as well as contracts, is that it is unclear how far a contracting party has to go to perform the contractual undertaking. It has sometimes been regarded as a synonym for reasonable efforts but often as a term on a continuum where best is something more than just reasonable. In other words, your best effort might involve you in having to undertake unreasonable actions. If, for example, raw material to produce the contract product is only obtainable at exorbitant prices, then reasonable efforts might release you from your contractual obligation but best efforts perhaps require that you acquire the raw material despite it being economically extremely disadvantageous to do so. This would make the term unworkable in contracts; according to Adams, US courts have overwhelmingly rejected that best efforts represents a more onerous standard than reasonable efforts.

The use of reasonable efforts excludes some of the uncertainty of “best efforts” but, of course, the court still has to decide what reasonable efforts consist of  (commercially reasonable?).  If the EU wanted to say (as they claim now) that the term meant that Astrazeneca was released from performance of the contract provisions if the vaccine had not been approved, then it might have been better to state this carve out explicitly and leave efforts out of the picture altogether. If it goes so far, a court will have to decide whether “best efforts” extends so far as forcing Astrazeneca to break other contracts.

The problems with the term best efforts are not new. It’s interesting that the EU. with access to any amount of legal expertise should lay itself open to a tussle on the meaning of this term (and also what Astrazeneca had in mind by use of the term).

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