In Contract Law, There Is A 'Try' And It Can Have Teeth

By Glenn West, Weil Gotshal & Manges LLP (May 8, 2017, 12:47 PM EDT) -- In what is perhaps one of the most famous lines in the "Star Wars" series, Yoda rebukes Luke Skywalker for saying he would "give it a try" with these immortal words: "Do, or do not. There is no try." When the goal is to raise a star fighter out of a swamp using only your mind linked to the Force, a goal requiring absolute commitment to achieve complete control, Yoda's advice may be correct. But when the goal is to describe a contractual commitment that involves a matter over which the obligor does not and cannot have complete control, limiting your means of evidencing that commitment to simply "do, or do not" is problematic. As a result, when a contractual obligor's commitment involves obtaining a third-party consent, approval of a governmental agency, financing or the like, U.S. transactional lawyers have long used the term "efforts," with various modifiers, like "best," "reasonable," "reasonable best," or "commercially reasonable," to convey the idea that the contracting party was agreeing to less than an absolute obligation to accomplish the specified objective. Consistent with the observation attributed to George Bernard Shaw that "England and America are two countries divided by a common language," English transactional lawyers use a different term, "endeavors," with similar modifiers, to convey the same meaning (but spelled "endeavours" of course). In effect, the party undertaking to use its efforts or endeavors is agreeing to "try" to do something, rather than agreeing that it absolutely "will" do something. How hard that party is willing to "try" is often heavily negotiated (purportedly by use of the various modifiers), but the understanding that the efforts or endeavors obligation is less than an absolute promise is seldom in doubt....

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