Jane Austen vs Frank Miller - the reasonable and the best

Last week Corporate Blawg's wife subjected him to 2 hours of Becoming Jane, a movie about Jane Austen's wilted daisy of real-life romance.  To date, Corporate Blawg has avoided discussing this blip in his cultural development, for fear of a permanent invitation to the Dull Men's Club.  In Corporate Blawg's highly sophisticated view of the cinematic experience, costume dramas should involve swords rather than guns, and the only silly dances should be around bonfires prior to slaughtering the enemy.

So yesterday Coporate Blawg took his wife to see 300, Frank Miller's version of the Battle of Thermopylae, where 300 Spartans resisted a massive army of Persians.  Corporate Blawg's wife seemed to find as much objection in severed heads flying in slo-mo (and deformed men with blades grafted onto their fore-arms), as Corporate Blawg had found a week earlier - with Jane's Austen's pathetic attempt at meeting a man and settling down.  After feeling subjected to 300, Corporate Blawg's wife suggested he was emotionally stunted, so he pointed out that so was Jane Austen "for withdrawing from the world to write six of the greatest novels in the English language". 

This simple diffusion of a potential explosive situation stemmed from Corporate Blawg's life-long commitment to use best endeavours to preserve and maintain the happiness of his wife.  Even though "best endeavours" were not in his traditional vows, Corporate Blawg considers that they should have been and should be for all lawyers who marry.  Accordingly, Corporate Blawg has suggested marriage vows for future marrying corporate lawyers:

"Do you [  ] take [  ] to be your partner for life – to enjoy a legal and equitable benefit, in trust in perpetuity, and contracted to domicile in the holy estate of matrimony? Will you always use your best endeavours to comfort her? Will you act in every way possible (other than crime) to maintain her honor?  In personal injury and having reached all milestones and service levels, for consideration, and for taxation, in completion and in down-tools, to procure compliance with all safety regulations, and to bestow on [her/ him/ it] your reasoning and greatest consideration, forsaking all others to whom it may be profitable, and to keep yourself exclusively with [her/ him/ it] as long as you both shall live, [optional - and then beyond too if possible under any religion which has such jurisdiction*]?

*provided no additional or onerous terms and conditions are imputed upon this agreement."

It might work.  Rev. Corporate Blawg will be available to hold any services between 1pm and 2pm on weekdays or between 2am and 3am on Sunday mornings.

And on this very concept of best endeavours Corporate Blueg has been gezumped by Ken Adams who has a rather professional site and blog called Adam's Drafting.  Ken, who is presenting a course on drafting in London on 17 April this year, as discussed Rhodia International Holdings Ltd. v. Huntsman International LLC, [2007] EWHC 292 (Comm).  In this case the judge found, in obiter dictum (cough cough), that all reasonable endeavours could equate with best endeavours. 

Ken is correct for stating that this view was weak beer or even a soft-drink (the origin of the term "codswallop").  Corporate Blawg would suggest that the judge's view is a load of old tripe, but for different reasons to Ken.  Ken argues a semantic view that "best" must be by all accounts better than "reasonable" no matter how extensive that reasonableness may be.  True enough, but much more importantly in Corporate Blawg's view is the distinction based on the financial impact on the part who must carry out those endeavours.  In Corporate Blawg's dark and hazy understanding of the law:

• "Reasonable endeavours" means endeavouring to the extent that it will not have any material financial impact on the endeavouring party.
• "All reasonable endeavours" means endeavouring to the extent that any material financial impact will not exceed the benefit of the agreement for the endeavouring party.
• "Best endeavours" means endeavouring to the entire consideration of the agreement for the endeavouring party, provided such endeavouring does not cause insolvency. 

Perhaps these are artificial distinctions, created by Corporate Blawg to help him understand a vague concept - but they work, and any Court of Appeal judge in the U.K. would be wise to bear in mind these distinctions as stated by Corporate Blawg here in this post. 

Where Corporate Blawg always uses best endeavours to please his wife in all ways, Corporate Blawg's wife understands that sometimes he would prefer to write his blog than watch Jane Austen season on a Sunday night.

Comments

[Nearly Legal]

It must be a Sunday thing. I am in awe of the clarity of your statement of the import of the terms, but I think we were thinking similarly.

I've updated my post to point to yours.

[JB Conner]

In the US (NY, for example), numerous courts have found that "best efforts" does not require endeavoring to the entire consideration short of insolvency. Of course, the extent of such endeavoring has not been made clear by the courts.

I think this results in more blurriness between the standards in the US.

[Corporate Blawg]

Thanks JB... My definition of "best endeavours" is intended more as a rule of thumb for drafting. As you can see by the Rhodia case, there is blurriness in the UK too.

Ultimately, Corporate Blawg's message is to never allow best endeavours and always try to get them.

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