The phrases "use reasonable endeavours" or "use
all reasonable endeavours" are firm favourites with those who
draft contracts, whether relating to property or not. Occasionally,
the phrase "use best endeavours" is used, but much
less frequently due to concerns as to how much it might cost to do
one's very best.
At the heart of the debate is the extent to which the
person with the contractual obligation in question is entitled to
take into account his or her own financial interests.
Although the meaning of such phrases has been analysed in a
number of cases decided by the English courts over the years (
click here for our e-update of 9 August 2010), litigation
in the Scottish courts has been rare. The recent decision of the
Outer House of the Court of Session in the case of Mactaggart
& Mickel Homes Limited -v- Charles Hunter
and Mrs Sandra Hunter is therefore welcome in providing
some Scottish judicial guidance on these phrases.
