Best endeavours v reasonable endeavours
Many construction industry practitioners will have been confronted with a contract which requires the parties to use 'best' or 'reasonable' endeavours in performing obligations under the contract. This apparently minor difference however presents a real risk to a party if they are unaware of the difference in legal interpretation between the two terms.
Evidently an obligation to use 'best endeavours' implies a higher degree of commitment to perform a particular task when compared to 'reasonable endeavours' but, as is often the case, it is only when a contract dispute arises and Court proceedings follow that the reality of the difference becomes apparent.
There are no clear definitions of these terms upon which reliance can be made but case law has held that best endeavours means, amongst other things:
- To leave no stone unturned.
- To do what is reasonably to be expected in the circumstances.
- Not to do anything that will jeopardise the commercial interests of the obligor.
An immediate and obvious difficulty is that the word “reasonably” appears in a definition of 'best' endeavours. Furthermore, case law has also used similar language in defining reasonable endeavours.
Behind these definitions lies an expectation of what might be done to ensure that these obligations are met.
In the case of best endeavours it may be the case that a party has to commit extra resources or spend additional funds in order to meet the obligation, even to the extent that it is commercially damaging to the party concerned. Where the obligation is reasonable it is unlikely that this degree of obligation would be applied by the Courts.
And when it comes to testing these definitions in Court a subjective approach is adopted for best endeavours whilst it is an objective one for reasonable endeavours.
For the purposes of the layman, however, one can point to certain more simple facts:
- Reasonable endeavours will be less onerous than best endeavours.
- If a contract sets out specific steps to be taken as part of a reasonable obligation, ensure that these steps are indeed carried out. This is regardless of commercial considerations.
This article was created by: --Martinc 14:11, 22 November 2014 (UTC)
[edit] Related articles on Designing Buildings Wiki
- Delict.
- Duty of care.
- Duty to warn.
- Fitness for purpose.
- Good faith.
- Good faith – good grief.
- Reasonable skill and care.
- Unreasonable.
[edit] Relevant case law
Featured articles and news
From studies, to books to a new project, with founder Emma Walshaw.
Types of drawings for building design
Still one of the most popular articles the A-Z of drawings.
Who, or What Does the Building Safety Act Apply To?
From compliance to competence in brief.
The remarkable story of a Highland architect.
Commissioning Responsibilities Framework BG 88/2025
BSRIA guidance on establishing clear roles and responsibilities for commissioning tasks.
An architectural movement to love or hate.
Don’t take British stone for granted
It won’t survive on supplying the heritage sector alone.
The Constructing Excellence Value Toolkit
Driving value-based decision making in construction.
Meet CIOB event in Northern Ireland
Inspiring the next generation of construction talent.
Reasons for using MVHR systems
6 reasons for a whole-house approach to ventilation.
Supplementary Planning Documents, a reminder
As used by the City of London to introduce a Retrofit first policy.
The what, how, why and when of deposit return schemes
Circular economy steps for plastic bottles and cans in England and Northern Ireland draws.
Join forces and share Building Safety knowledge in 2025
Why and how to contribute to the Building Safety Wiki.
Reporting on Payment Practices and Performance Regs
Approved amendment coming into effect 1 March 2025.
A new CIOB TIS on discharging CDM 2015 duties
Practical steps that can be undertaken in the Management of Contractors to discharge the relevant CDM 2015 duties.
Planning for homes by transport hubs
Next steps for infrastructure following the updated NPPF.