Efforts Clauses as Negotiating Tools

 I consider efforts clauses to be a valuable negotiating tool.

You know what I'm talking about - reasonable efforts, best efforts, commercially reasonable best efforts, and the like.

Some academics go into great detail explaining the conflicting case law and that we cannot be sure how a court will interpret the phrase.

I'm ok with that. The value I see is not in its certainty but as a tool for reaching consensus.

Let's say a buyer wants the seller to commit to some task. The seller is reluctant and wants to delete it.

In comes the efforts clause.

The buyer can acknowledge the seller's challenges and offer an efforts clause to soften the obligation. And this approach often works because the seller perceives that the efforts clause reduces the burden.

I love this solution - the buyer is happy because it keeps the obligation, and the seller is satisfied because it reduced the obligation. Now we can get the deal done.

And in the real world, getting a deal done has a lot more value for companies than having certainty about an efforts qualifier.