English Contract Law: Best Endeavours Revisited

Following a number of high profile decisions of the English courts on commonly used contractual provisions, this update elaborates on the scope of the term 'best endeavours'.

The scope of the terms 'best endeavours' and 'reasonable endeavours' has been considered by the English courts time and again. Recently, the Court of Appeal considered the validity of a 'best endeavours' obligation in a general contractual provision.

Jet2.com Limited v Blackpool Airport Limited [2012] EWCA Civ 417

Jet2.com operated a low cost airline from Blackpool airport, operated by BAL. Jet2.com's business model depended upon the airline being able to fly outside of normal business hours. Keeping the airport open through the night was unprofitable for BAL and, after unsuccessful negotiations between the parties, BAL gave notice to Jet2.com that it would withdraw its out-of-hours facilities. Jet2.com claimed damages for breach of contract based on the following obligation:

"Jet2.com and BAL will .... use their best endeavours to promote Jet2.com's low cost services."

The court held that, in order for the 'best endeavours' obligation to be valid, there had to be objective criteria against which the sufficiency of the efforts to comply could be judged. Despite the fact that the obligation was contained in a general provision which did not refer to out-of-hours operations, the court held that it was a clause which could be given a practical context, although when drafted its limits would have been difficult to define. In this case, the clause meant that BAL had an obligation to enable Jet2.com to 'grow and succeed'.

With regard to the scope of the 'best endeavours' required of BAL, one of the judges (Lord Justice Longmore) said the following:

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