MoFo News Item

'Best Efforts', 'Commercially Reasonable' and Other Terms No One Understands

15 Mar 2016

Grant Esposito, a former chair of the firm’s Litigation Department, and litigation associate Jessica Kaufman authored the article, “‘Best Efforts,’ ‘Commercially Reasonable’ and Other Terms No One Understands,” which appeared in the New York Law Journal on March 14.

Contracting parties routinely use terms like “commercially reasonable” and “best efforts” to describe future performance, either because they cannot or choose not to agree on what steps will actually occur.  While adopting such undefined, but commonly used, terms might save time on the front end of getting a deal done, it often leads to costly, time-consuming disputes later.

In this article, Mr. Esposito and Ms. Kaufman explain how such poorly understood contractual terms have been interpreted by the courts and provides practical tips to more clearly define what future steps are required, to monitor compliance, and to minimize the costs and burdens should litigation arise.

Read the full article.

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