Second Language Legal English
In this series of lessons, I talk about words that lawyers use differently from how it is used in everyday speech. Endeavour is not one of those words, but lawyers like to use it in contracts that impose a general obligation or where describing every obligation in detail would be impossible or would use too many words.
I will return to that later, but first, here are some definitions.
Endeavour (endeavor in American English) is both a verb and a noun. I could have opened this article with this phrase:
In this article I will endeavour to explain how lawyers use the word 'endeavour'.
Here, endeavour means attempt to explain or try to explain.
As a noun, endeavour means to use energy to produce a result.
The army advanced with great endeavour to capture the enemy's post.
Bella's latest sporting endeavour was to run three marathons in three days.
The meaning behind the word is the use of effort with the intention to succeed.
How lawyers use the word
In this course we look at a simple employment contract in which that word is used twice.
2.4 During your employment you will …
2.4.4. use your best endeavours to promote, develop and protect our business, interests and reputation;
14.3. During your employment you will …
14.3.1. use your best endeavours to prevent the unauthorised publication or disclosure by third parties of any Confidential Information;
You will see that the noun form is used in the plural form (endeavours), wrapped up in a verb phrase - to use your best endeavours. But the obligation imposed is vague and general. The employee is not told what they must do specifically to promote, develop and protect our business, interests and reputation, or further to prevent the unauthorised publication or disclosure by third parties of any Confidential Information. The contract also requires the use of best endeavours.
Other 'endeavour' phrases you may see in contracts include:
you must use reasonable endeavours
you must use all reasonable endeavours
you must use all reasonable but commercially prudent endeavours
What's the difference between them? And who decides if a person used only reasonable endeavours but not bestendeavours?
The answer to the second question is straightforward. If the parties disagree, the courts must decide. But here's the problem. Litigation is expensive and the outcome is uncertain. Courts in the US and the UK have made different decisions, so there is no agreement between both sides of the Atlantic.
One of the leading British cases, which I have seen referred to in both US and UK textbooks, examined this clause in an agreement;
Jet2.com and BAL will co-operate together and use their
best endeavours
And
Jet2.com and BAL will co-operate together and use their all reasonable endeavours
and the court held that the two phrases had the same meaning. That is something the US courts would disagree with.
One thing we can be sure of: phrases like best endeavours are the most litigated. I have just searched a case law database, and it returned 2511 cases in which the meaning of best endeavours was examined, and the oldest was in 1663!
Remember that this is a course about language rather than law, so I cannot offer advice about the legal meaning and effect of using one or other of the endeavour phrases. Rather, I need to advise on whether they should be used. The best advice is that, if possible, the phrase should be avoided.
One alternative is to insert a definition of what best endeavours means in that agreement. Or try to make the obligation as clear as possible to the employee how they may "promote and develop the business" or take steps to protect confidential information to prevent it from being published.
If this isn't possible or practical to be more precise (or maybe it is but the parties can agree on the detail) there may be no alternative to a best endeavours clause. Ensure your client knows the risks and consequences of using such a clause, and check if the courts in that jurisdiction interpret it more or less strictly.