Word of the Week in Law: Efforts

Word of the Week

Under the common law tradition, when accomplishing a specific goal is not entirely up to the promising party, the parties may agree that the promisor use reasonable efforts, or some other efforts standard, to accomplish that goal. In such cases, the contract will only impose an efforts standard in connection to one or more specific obligations (e.g. to promote sales of a product).

American drafters use a variety of different efforts phrases. According to Adams, “[a]n informal survey of the contracts filed as “material contracts” on the U.S. Securities and Exchange Commission’s EDGAR system suggests that the most prevalent efforts phrases are best efforts, reasonable efforts, commercially reasonable efforts, and reasonable best efforts. Also used are good-faith efforts, diligent efforts, and every effort. The mix-and-match quality of efforts terms can approach the bizarre, as in best good-faith reasonable efforts.”

As a lawyer-linguist, one often runs into interesting alternatives to efforts provisions, such as aggressively + verb (e.g. Acme shall aggressively promote the implementation of policies in compliance with the standards for the safe and appropriate use of agricultural chemicals and maximum residue limits), strive to (e.g. The Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws as an encouragement for trade with the other Party), utmost care (e.g. The Contractor shall use the utmost care so as not to endanger life, property or structures), and other similarly colorful phrases.

In the US, efforts standards are problematic enough to warrant several chapters in different contract drafting manuals. And, once again, translation reveals just how problematic efforts standards can be.

No Linguistic Equivalent

In Spanish speaking Civil Law countries there is no exact conceptual, let alone linguistic, equivalent to an efforts standard. When Civil Law lawyers know that accomplishing a specific goal is not entirely up to our client, we simply refer to the law of obligations in tort and/or contract (whichever applies) in our respective Civil and/or Commercial Codes.

The business world being what it is though, we often find ourselves working with Anglo-American law firms who are increasingly bringing their style of practice into Civil Law countries. Unfortunately, those styles of practice don’t always reflect the best of Common Law practice and sometimes involve promiscuous copy-and-pasting of contract clauses that are only appropriate under Common Law (such as the requirement that a contract be supported by consideration) with no regard to local practice. Efforts clauses are one such example of this; and, thus, often require translation.

The Takeaway

Far be it from me to tell anyone else how to practice law, but when we know our contracts are crossing legal systems, a little awareness goes a long way. As lawyers, when working across systems, we have a duty to understand as much as we can about each of the systems involved and adapt our drafting style accordingly.

From a linguistic point of view, efforts clauses need not be translated literally. Interpreting the standard in context gives translators the freedom to use explicative phrases which help circumvent word-for-word translations that make little or no sense in their target countries. But if we do our jobs right as lawyers, linguists won’t have the need to circumvent these problem phrases in the first place.

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