In Search of Best Efforts: Reinterpreting Bloor v. Falstaff

Abstract

When contracting parties cannot quite define their obligations, they often resort to placeholder language, like "best efforts." They (and their counsel) likely have little idea of what they might mean, but, so long as they avoid litigation, it will not matter much. But "best efforts" clauses are on occasion litigated, and courts must read content into them. In Bloor v. Falstaff, a casebook favorite, ' the court held that Falstaff s lackluster promotional efforts for Ballantine beer violated its best efforts covenant. So far as I can tell, no commentators have questioned this outcome. Indeed, some commentators have found Falstaff s breach so egregious as to provide not much of a test of the boundaries of "best efforts." Farnsworth, for example, says: "Unfortunately, its decision did relatively little to add precision to the meaning of 'best efforts,' since Kalmanovitz [of Falstaff] fell so far short of the mark." 2 "Best efforts" can only be defined contextually. However, neither Judge Brieant at trial 3 nor Judge Friendly on appeal, 4 attempted to place the contract in its business context. Had they framed the problem properly, the outcome

Lo Que Importa Es La Intención: La Cláusula De Mejores Esfuerzos (Best Efforts). Apuntes Desde El Derecho Peruano Hacia El Derecho Comparado

“… Special report (1980);Goetz y Scott (1981), p. 1120-1123 FarnSWorth (1984), p. 10-12;lonG (1986), p. 1729-1730Fontaine (1988 Fontaine ( ), p. 1007 Fontaine ( -1008GoldBerG (2000); hertz y tarGoFF (2002), p. 14; adamS (2004), p. 13;Shine (2004), p. 16; miller (2006); parK (2006); JoneS day (2007); acevedo rehBein (2006), p. 104-105; SerGent (2007), p. 50. 41 Bloor con Falstaff Brewing Corp. (1979).…”