A construction project can be delayed for a multitude of reasons. Where the cause of the delay is not force majeure, or other excusable delay by a contractor, and where the contractor has some fault, what level of actions must a contractor take to satisfy the terms “best efforts” or “reasonable efforts” or “commercially reasonable efforts” often used in the ‘efforts clause’ of a construction contract? In an article for the Daily Journal of Commerce, I look at several factors that can affect the expectations on a contractor for making good after a delay, including how the jurisdiction that governs the contract differentiates, or doesn’t, between the terms, whether the jurisdiction has concluded that “best efforts” language creates a fiduciary relationship between the parties and commensurate heightened obligation of performance by the contractor, and more. Read the full article here.

Originally published by the Daily Journal of Commerce on May 18, 2023.