However, if a document lists certain measures that the parties must take as part of a commitment to make reasonable efforts, those measures must be taken independently of commercial considerations. It should be noted that most commercial contracts refer to the term “all reasonable efforts” and it is generally accepted that this should be interpreted in the same way as “reasonable efforts”. “Commercially reasonable efforts” imply a more lax approach to engagement, as it considers broader commercial impacts. In Jet2.com v. Blackpool Airports [2012], an airport operator promised to do everything possible to promote the low-cost services of a low-cost airline. This meant that it had to allow that airline to operate outside the airport`s normal opening hours, even if it meant that the airport was making a loss on those services when that was the only way to promote the business as promised. The difference between reasonable efforts and best efforts in practice can be very difficult. The intentions of the parties at the time of writing and common sense are likely to prevail, but the consequences of different interpretations can be a recipe for disputes and litigation. Therefore, it is strongly recommended to be clear and give sound legal advice in this area.

The courts have held that the term “reasonable efforts” likely requires only that the debtor take only reasonable action (obiter, Rhodia v Huntsman [2007] EWHC 292 (Comm), [2007] 2 All ER (Comm) 577). There will always be an element of uncertainty as to what is agreed upon when using the Endeavours clauses. It is important to note that, although the meaning of the term must be interpreted in the light of the normal rules of contract interpretation (i.e. in the light of the relevant contractual and factual context, including the economic context at the time of conclusion of the contract), the question whether or not the obligation has been fulfilled is examined in relation to the situation at the time of performance and is therefore sensitive on the factual plan. All reasonable efforts fall somewhere between best and reasonable effort, although this scale is less clear. There seems to be evidence that the promising party is not always obliged to sacrifice its commercial interests (but the extent to which the promising party can take into account its own interests depends on the particular contract). It is likely that more reasonable options of action will have to be exhausted than mere reasonable efforts. The complete transformation of an obligation into a mere contractual power or discretion would reduce the burden of burden, since the main limitation of these clauses (which may or may not apply depending on the contract) is only the requirement that the party act rationally with the power or discretion. However, more discretionary obligations are unlikely to be acceptable to both parties, as uncertainties are usually adequately eliminated for effort obligations and particularly those that are at the heart of a contract, such as the creation of the subject matter of the contract. Terrell v.

Mabie Todd & Co Ltd concerned a patent licence for fountain pens and ink bottles, under which a party was required to do its best to sell as many fountain pens as reasonably possible. It was decided that the commitment would not oblige managers to continue manufacturing and sales until the certain ruin of the enterprise, but before this extreme position could be reached, the question arose as to how much money should be spent on production and advertising. The corporation was required to do what it could reasonably do in the circumstances, and the standard was that of a reasonable and prudent committee that acted properly in the best interests of its corporation and focused on its contractual obligations to exploit the inventions. The obligation therefore requires a party to bear the costs of performing its obligations, but may take into account its own financial situation. It is therefore likely that a court would consider that a company with more resources should do more to best meet an obligation than a company with less effort. The problem arises when it turns out what measures are really necessary and there is a debate as to whether the promising party (the promisor) should take this course of action to comply with the contract. The result depends on the level of effort established: adequate, optimal, all reasonable or reasonable, but economically prudent. We explain the difference between these types of efforts. The promising party had to use its best efforts to take all steps likely to achieve the desired result that would be taken by a prudent, determined and reasonable undertaking holder acting in its own interest and seeking to achieve the result (IBM United Kingdom Ltd v. Rockware Glass Ltd [1980] FSR 335). There will always be an element of uncertainty as to what is agreed upon when using the Endeavours clauses. In order to mitigate this uncertainty, it may be possible, in some cases, to clearly specify in the contract the steps that the debtor must take to fulfil its obligation, rather than relying solely on a commitment clause.

Such measures could include a cap on the amount of money the debtor must spend to meet its obligation; the period during which the debtor must perform the obligation; and whether the debtor is required to take legal action to enforce the obligation. Basically, the debtor is not normally obliged to sacrifice its own business interests and may be entitled to consider the impact on its own profitability (P&O Property Holdings Ltd v Norwich Union Life Insurance Society [1993] EGCS 69). This is the most important differentiator of a commitment to the best of our abilities. If the debtor fails to achieve the objective as part of an obligation of obligation, it is not in breach if it has met the required standard of effort, that is: whether, according to the wording of the clause, it has done its best or “reasonable” efforts to achieve the objective. Commercial considerations play an important role in determining whether a party has complied with the obligation. If they are subject to obligations to the best of their ability, commercial considerations and efforts may not be sufficient, while they may satisfy an obligation to make reasonable efforts. In practice, an obligation may, to the best of its ability, require expenditure in favour of the debtor. The courts have found that the fact that a party has agreed to do its best means that it may very well incur financial costs, so that financial costs cannot be invoked as a reason for not fulfilling its obligation. In Jet2.com against Blackpool Airport Ltd, Blackpool Airport and Jet2.com entered into a contract requiring the parties to `cooperate and make every effort to promote low-cost Jet2.com services from [Blackpool Airport]`. Jet2.com sued Blackpool Airport for breach of contract because Blackpool Airport refused Jet2.com to allow flights to and from Blackpool Airport outside published opening hours.