So what is the obligation imposed by the expression “best efforts”? The main U.S. case interpreting the undertaking is Bloor v. Falstaff Brewing Corp. In this case, Falstaff had purchased Ballantine Ale from Bloor and agreed to pay Bloor a percentage of the profits from the sale of Ballantine Ale. Falstaff agreed to do his best to maintain a high volume of sales and maximize the payout to Bloor, but when sales weakened, Falstaff did little to stop the crash. Bloor filed a lawsuit and won both in district court and on appeal in the Second Circuit, but it`s the court`s struggle with the term “best efforts” that provides one of the most interesting legal issues in the case. In considering the notion of “best efforts” in the treaty, the Second Circuit stated, “The requirement that a party make its best efforts does not necessarily prevent the party from taking due account of its own interests.”  However, the Tribunal required Falstaff to act “in good faith and to the extent of its own overall capacity,” or at least to provide comparable performance “as good as the conservative average.”   Corporate Lodging Consultants, Inc. vs. Bombardier Aero. Corp., No. 63-1467-WEB, 2005 U.S.
Dist. LEXIS 9259, at *13 (D. Kan. 11 May 2005). The District Court made this statement, although it recognized that the “Kansas Supreme Court has stated that the best efforts are to create a standard of behavior for [a party`s] performance under the agreement, which goes beyond the implied duty of good faith.” “Id. In other words, at least in the eyes of the District Court, both the best and appropriate efforts required more effort than “good faith”. [T]he efforts do not mean “all efforts”. This does not mean “making efforts to the point of unreasonable hardness”. It doesn`t mean “all the effort.” What this means are efforts that, on the whole, are reasonable. What is reasonable in the circumstances obviously depends on the facts of each case. The clause may appear in the “Covenants” section or in the various provisions. It is closely related to other insurances and is sometimes combined.
The obligation can also be included as a performance standard in a large number of concepts, such as. B an obligation to perform in a contract of employment or an obligation to consent. Another variant is the phrase “reasonable best efforts”. This has not been explicitly considered in Canadian jurisprudence, although one U.S. author believes that “best efforts” and “reasonable best efforts” are likely similar, given that the word “reasonable” is largely irrelevant.2 This is important in Canada (as in the United States), given that the phrase “reasonable best efforts” could put you in trouble, if you think it`s a little less than “the best efforts”. because it`s not possible….