Key Points:
When inserting an obligation to use "best
endeavours" or "reasonable endeavours" in a
contract, you should consider what this actually means to the
parties and list any specific steps that must be taken towards
complying with it.
Parties often qualify contractual obligations by making them
subject to the use of "best endeavours" or
"reasonable endeavours". Obligations are typically
qualified in this way when it is uncertain whether or not a party
will be able to meet the obligation because of circumstances
outside of its control, for example where a third party's
agreement is required.
The expressions "best endeavours" and "reasonable
endeavours" have generally been considered by the courts as
imposing similar obligations. This was confirmed in Cypjayne
Pty Ltd v Babcock & Brown International Pty Ltd [2011]
NSWCA 173.
