press clippings
Monday, 04 Oct 2010
Voyage of the endeavour
It is a simple reality of commerce that a contemplated objective may, through no fault of either party, become unachievable – making it unfeasible that commercial contracts only ever impose absolute obligations. A contract often includes an “endeavours” clause, which sets out the lengths to which a party must go in order to avoid finding itself in breach of contract for failing to meet a particular contractual requirement.
The most commonly used clauses of this type are to use “best”, “reasonable” or “all reasonable” endeavours. However, too often these terms are simply being used (1) as standard phrases in contracts because solicitors are used to seeing them; and (2) as ping pong balls in the negotiation between solicitors, rather than because the parties to the contract have actually thought about what standard of endeavour would best apply to a given commercial aim. In addition to this, there is uncertainty about the level of effort each clause requires, which is continually evolving with case law. This makes it difficult for those drafting commercial contracts to advise their clients on the practical consequences of these types of clause.
To read the full article click here: The Journal 20 September 2010