The BUSKLAW Newsletter

  Most lawyers draft contracts. That's what lawyers do. And they use perceived terms of art ("TOAs") because they want to be paragons of contract-drafting precision. But here is where the canker gnaws:  the words that lawyers insert in their contracts as TOAs are actually not, potentially causing problems in clarity and interpretation. And as I've said time and again, these problems lead to disputes, and disputes lead to litigation, which is always time-consuming and expensive for the parties involved.  Let's first define TOAs in the legal context. According to Professor Bryan Garner in his Dictionary of Legal Usage , TOAs have specific, precise meanings that are "locked tight" and based on legal precedent. But then there are the faux TOAs, "whose meanings are often unhinged." Expert contract drafters, Garner says, know that clear, simple drafting is less subject to misinterpretation than using TOAs that are nothing more than "mere jargon....

OK, class (as in budding students of contracts and astute readers). Launch your word processing or Adobe ™  Acrobat Reader software and open one of your longer business contracts. Pull up the text "find" feature and search for the following three contractual phrases: best efforts  commercially reasonable efforts   reasonable efforts  Do you have any hits? Regardless, have you ever wondered what these phrases mean? Whether you are on the receiving or giving end of these "efforts" provisions, you should know what you're in for!  The short answer is not a lot. But keep reading .  Many contracting-drafting lawyers are enamored by these phrases. If their client is on the giving end of a contractual duty, they use "commercially reasonable efforts" to perform that duty. But if their client is on the receiving end of a contractual duty, they will argue for a supposedly higher performance standard: "best efforts." But in the words...