| Is there really any difference between the terms “best efforts” and “reasonable commercial efforts” when used in contracts? Yes. Under certain states’ common law, “best efforts” may require the party agreeing to use “best efforts” to come out of pocket and spend money to make a promise happen. By contrast, “reasonable commercial efforts” are considered a step below that and do not normally require a party to spend monies. The difference between the terms could mean whether you are in breach of an agreement or not, and responsible for the other party’s damages. |
Practice Tip: Pay attention to the language used, especially when receiving a long form agreement from another party, because it could cost you out-of-pocket expenses or damages. Some early extra effort reviewing and negotiating the contract will pay off down the road.