Where endeavours are used within a contract, this will typically obligate a party to ‘try’ to satisfy an obligation rather than absolutely commit to it.
Best endeavours
Through case law, the term has been refined to mean to take all those steps in their power which are capable of producing the desired results … being steps which a prudent, determined and reasonable [obligee], acting in his own interests and desiring to achieve that result, would take.
This therefore requires a party to use their best efforts as if they were acting in their own interest and may even require expenditure on the part of the obligee.
Reasonable endeavours
This is interpreted as being less burdensome than best endeavours and the courts interpretation has been that the obligor (being the party obligated to undertake the action under contract) must balance the weight of their obligation against any relevant commercial considerations.
Once the obligor has taken reasonable steps in relation to the contractual obligation and no further reasonable steps can be taken to achieve the objective, then the obligor is no longer required to try.
Other commonly used endeavours
Due to their slightly ambiguous nature, endeavours clauses are intepreted by the courts on a case-by-case basis and dependent on what the obligation is and what a reasonable person can do. As such, there are a number of other commonly used endeavours terms which parties may use:
– commercial endeavours;
– utmost endeavours;
– commercially reasonable endeavours.
The strength of the burden under these will be for the courts to decide in relation to the case in which they are used.
