Few phrases in a contract look as harmless as “best efforts.” It sounds like a promise to try hard. In practice, contracts build a ladder out of effort words — best efforts at the top, then reasonable efforts, then commercially reasonable efforts — and where a party stands on that ladder can decide how much money it must spend, how long it must persist, and when it is allowed to stop.
The rungs are not interchangeable. “Best efforts” has been read to demand nearly everything a party can do, even at a loss. “Reasonable efforts” asks what a sensible party would do in the same position — less, and deliberately so. “Commercially reasonable efforts” adds the party’s own interests to the scale: effort, yes, but not at any price. Three phrases, one family resemblance, and a wide distance between the top rung and the bottom.
The danger is translation — not between languages, but between assumptions. Two professionals can sign the same clause believing it means different levels of commitment, each certain the words are obvious. Months later, when performance falls short, the argument is not about what happened. It is about which rung they were standing on all along. Serious drafters define the standard, give examples, or name its limits — because effort that is never defined becomes effort that is endlessly disputed.
In more than thirty years of Legal-Ease International training seminars — from Panama to Mexico City, Saudi Arabia to Portugal — Dena Falken has taught professionals to read effort clauses the way engineers read load ratings: before the weight is on them. Words are the structure. A contract says only what its words were built to say.
Dena Falken, J.D., Columbus School of Law, Catholic University of America; B.A. in Law and Society, American University — trader, entrepreneur, Berkshire Hathaway investor, and founder of Legal-Ease International. Author of Million Dollar Words: When One Word Costs Millions and The Global Legal English Masterclass: Essential Terminology for Cross-Border Documents.
Amazon author page: https://www.amazon.com/author/denafalken.com
Million Dollar Words: https://www.amazon.com/dp/B0HMP9XZT1
The Global Legal English Masterclass: https://www.amazon.com/dp/B0HMM3FCZ4
Million Dollar Words on Goodreads: https://www.goodreads.com/book/show/260938774
