I’ve seen more than my fair share of unfortunate drafting, but my work for LegalSifter has exposed me to a whole new level of stoopid.
That’s because when designing a "Sifter" to look for a particular issue, we methodically address every way that issue might be expressed, whether good, bad, or stoopid. As part of that process, I suggest what we should look for, then teams of lawyers pore over hundreds or thousands of contracts, seeing how my notions match reality and reporting back the results.
Inevitably, that has touched on efforts.
It was bad enough that the lawyers reminded me that not only do we have commercially reasonable efforts (with the redundant commercially), we also have reasonable commercial efforts. Even reasonably commercial efforts. Then it got worse. That’s because they pointed out instances of efforts used with endeavor(s) (without the u, because in this case we’re dealing with US contracts). Get a load:
First, you have efforts to endeavour:
Member shall use its commercially reasonable efforts to endeavor to place no less than 30% of the total roofing spend with Supplier.
But there’s also endeavor to use efforts:
If upon the effectiveness of such resignation there would be no Custodian acting hereunder, the Depositary shall, prior to the effectiveness of such resignation, endeavor to use commercially reasonable efforts to appoint a substitute custodian or custodians, each of which shall thereafter be a Custodian hereunder.
If the Sellers provide a Dispute Notice within the Review Period, then the Sellers and Purchaser shall endeavor to use good faith efforts to resolve such dispute in a timely manner, and upon such resolution,
If Buyer timely delivers objections and proposed corrections, then the Parties shall endeavor to use all commercially reasonable efforts to resolve all such objections and proposed corrections.
And endeavor with efforts:
Upon execution of this Agreement Company shall endeavor with reasonable efforts to obtain a release of all Executive ‘s personal guarantees of obligations of the Company.
And endeavor using efforts:
whereupon the Subordination Agent acting on behalf of each Trustee shall endeavor using reasonable commercial efforts to make such terms and conditions of such restructuring proposal available to all Certificateholders
And now, for my grand finale, endeavors in addition to efforts:
VIRU shall take the necessary steps, in the best possible way, and by using its best endeavors in addition to its best efforts, to achieve the greatest recovery of the debt of third-party farmers in favor of CAMPOSOL.
Gotta love the way they also threw in “in the best possible way”.
I can’t wait for someone to suggest, by way of analogy to that bit of negotiation-theater fantasy known as “double materiality” (discussed here), that if you’re required to endeavor to use efforts—in other words, if you have to try to try—that’s less onerous than just being required to try.
If you don’t mind, I’ll now go lie down in a darkened room.
Ken Adams is president of Adams Contracts Consulting LLC, author of A Manual of Style for Contract Drafting, and an advisor to LegalSifter.
