QUESTION 2

In Practical Completion, the contractor must complete the work with his best
endeavour. Discuss.
Endeavour according to Dictionary.com are to exert oneself to do or effects something,
make an effort or to attempt. In addition, according to Investopedia, best endeavour is a term
commonly found in commercial contracts, that places upon the party given such an undertaking,
the obligation to use all efforts necessary to fulfill it. "Best endeavors" places a party under a
stricter obligation than "reasonable endeavors." It is equivalent to the "best efforts" term widely
used in securities markets.
Keating on Building Contracts 5th Edition at page 575 has this to say as to the meaning of the
obligation to use best endeavours :This proviso is an important qualification of the right to an extension of time. Thus for
example in some cases it might be the contractors duty to reprogramme the works
either to prevent or to reduce delays. How far the contractor must take the other steps
depends upon the circumstances of each case but it is thought that the proviso does not
contemplate the expenditure of substantial sums of money.
In the case of Terrell v Maby Todd and Co (1952) the judge held that a best endeavours
obligation only required a party to do what was commercially practicable and what it could
reasonably do in the circumstances.
In an article in Building (10th September 1999) Neil White explained:
A best endeavours clause means that you do what a reasonable person would to
achieve an objective it is not a guarantee it may be overruled by conflicting obligations
and it doesnt apply to intangible outcomes such as an agreement.

Purpose of a best endeavours clause in a contract is not to impose an obligation to

achieve a particular objective but to require a party to do their best towards achieving that
objective. If the objective is not achieved, that does not of itself mean that the relevant obligor is
in breach of his or her best endeavours obligation. It is only if the objective was not achieved
because the person did not use his or her best endeavours that there will be a breach. This is
the case even if success depends on co-operation from an unconnected third party.
Best endeavours clauses are used in construction contracts where there is some doubt
about the ability of one party to achieve a particular objective. For example, in PWD Form 203A
(Rev. 1/2010), the contractor shall complete the whole of the work on or before the date of
completion as stated in appendix or such extended time as may be allowed. However, the doubt
may still exist, for example, because the objective which is to complete the work on or before
the date of completion might not be achieved because a third party beyond the obligors control
does something. For instance, an owner may want to obtain the benefit of supplier warranties
from subcontractors. However, the owner does not deal with the subcontractors, so it is unable
to obtain the warranties itself. The main contractor, though, is in a position to obtain these
warranties, because it deals with the subcontractors. But the main contractor may be unable to
guarantee that it can obtain subcontractor warranties. Some subcontractors may not offer
warranties on suitable terms, and others may not even offer them at all. The main contractor,
therefore, may simply agree to use its best endeavours to procure warranties for the benefit of
the owner, because that is the most that the main contractor can promise in the circumstances.
There may not be a definite objective, such as 1 There are innumerable examples in the
construction idiom of where a contractual object is not necessarily achievable, and where
agreement is reached simply that best endeavours are to be used to try to achieve the
objective. Another example is effecting and maintaining an insurance policy, where there may be
uncertainty as to the availability of cover for a particular type of risk or project: see, for example,
North Goonyella Coal Mines Pty Ltd v. North Goonyella Coal Properties Pty Ltd [2002] QSC
368. 2 See, for example, Terrell v. Mabie Todd & Co Ltd (1952) 59 RPC 234. [2004 The
International Construction Law Review 58
IBM -v- Rockware Glass Ltd; CA 1980
The court considered the meaning on a promise by one party to use its best endeavours to
obtain a relevant planning permission.

Held: The obligation included an obligation to appeal from an initial refusal of permission so long
as the circumstances were such as to indicate that there was a reasonable chance of success.
Buckley LJ said: I can feel no doubt that, in the absence of any context indicating the contrary,
this should be understood to mean that the purchaser is to do all he reasonably can to ensure
that the planning permission is granted. If it were refused by the Local Planning Authority, and if
an appeal to the Secretary of State would have a reasonable chance of success, it could not, in
my opinion, be said that he had used his best endeavours . . I find it difficult to see how it could
be said that to fail to appeal, if the circumstances were such as to indicate that an appeal from a
refusal of planning permission had a reasonable chance of success, could be said to be using
best endeavours to obtain the planning permission. and In my judgment the test must be:
what would an owner of the property with which we are concerned in this case, who was
anxious to obtain planning permission, do to achieve that end. The formula which has been
suggested and which would commend itself to me is that the plaintiffs as covenantors are bound
to take all those steps in their power which are capable of producing the desired results, namely,
the obtaining of planning permission, being steps which a prudent, determined and reasonable
owner, acting in his own interests and desiring to achieve that result, would take.
Geoffrey Lane LJ described the duty accepted as to take all those reasonable steps which a
prudent and determined man, acting in his own interests and anxious to obtain planning
permission, would have taken. An obligation to use best endeavours is sufficiently certain to be
enforceable

so

long

as

the

object

to

be

achieved

is

clear.

Goff LJ said that an agreement to use best endeavours to agree a mutually acceptable price is
unenforceable.

REFERENCES
1. International Construction Law Review 58 (2004)
2. Roger K., Dealing With Delays And Extensions Of Time
3. Andrew N., 1997, Construction Law Journal , Contractors' And Sub-Contractors'
Constant Best Endeavours To Prevent Delay
4. Available from : < http://devant.co.uk/index.php/resources/articles/your-best-may-not-beenough-tackling-the-contractual-endeavours-clause/ >
5. Available from : < http://www.investopedia.com/terms/b/best-endeavors.asp >
6. Available from : < http://dictionary.reference.com/browse/endeavour >