Making “Best Efforts” to Play in Tune or to Comply with Real Estate Contract Covenants

It is difficult to play a violin in tune.  For one thing, unlike with a guitar, there are no frets or markings on a violin fingerboard to tell the violinist where to put his/her fingers.  The fingers must move up and down the fingerboard and from one string to another, always hitting the perfect spot.  Even a millimeter difference in finger placement can be the difference between an in-tune and out-of-tune note.

It is particularly difficult for a violinist to play in tune if the violin is out of tune. Yet, violin strings are prone to going out of tune. The type of string,[1] weather, bumps to the instrument, and even playing the violin normally can cause the strings to go out of tune.

If it were not difficult enough, what being “in tune” means can change with the type of music being played.   Violins are not “tempered”[2] instruments; a D-flat and C-sharp are the same note on a piano but not so on the violin. The skilled violinist must be able to adjust his/her ear between tempered tuning when playing with a tempered instrument, such as a piano, and untempered tuning when playing with a string quartet, for instance.

As a result, even though it is of critical importance that a violinist play in tune, what sometimes, that doesn’t happen under the best of circumstances.   Likewise, in a real estate transaction, most parties work hard to accomplish the transaction goals, but sometimes that doesn’t happen either.

Also, like the violinist, who must play with different intonation in different environments, sometimes participants to real estate transactions are asked to modify their efforts to reach a goal through contract terms.  Various real estate contracts terms may require things such as “reasonable efforts,” “commercially reasonable efforts,” or “best efforts,” which may be as amorphous to the real estate party as tempered and untempered tuning seem to the uninitiated musician.

Terms such as “reasonable efforts,” “commercially reasonable efforts,” and “best efforts” are used in a contract to show the level of effort a party is obligated to use to pursue a covenant or promise that party has made.  For example, let’s use the covenant “I will play the violin in tune.”  If that isn’t qualified, then I have an absolute obligation to play the violin in tune no matter what happens. If I do not succeed in playing the violin in tune, I can be considered to have breached my covenant. That type of covenant frequently isn’t attractive to a party making the covenant, so the party will ask for the covenant to specify a specific level of effort required.

If the covenant is changed to say, “I will make best efforts to play the violin in tune,” then I might be required to keep my violin in good shape, practice many hours a day, take any lessons necessary from the best available teacher, and purchase any equipment necessary, regardless of the time commitment or cost or adverse consequences to my job, family, or health.  However, as long as I make that high level of effort, if I still do not succeed in playing the violin in tune, I will not have breached my covenant to “make best efforts to play the violin in tune.”

However, maybe I don’t want to have to give my all to playing the violin in tune.  In that case, I might ask that the covenant read “I will make reasonable efforts to play the violin in tune,” which doesn’t require as much effort be expended as best efforts.  “Reasonable efforts” still would require that I keep my violin in good shape, practice every day, and possibly, take lessons and purchase some equipment, but it would not require that I give up my job and family life and go bankrupt in order to play the violin in tune.

“Commercially reasonable efforts” is a newer term.  If I say, “I will use commercially reasonable efforts to play the violin in tune,” then most attorneys would say that adds an element of economic reasonableness and business practices given the circumstances into the mix.  Therefore, if, for instance, the typical violinist practiced two hours a day and had one lesson per week and used only an iPhone app as a tuner, rather than a fancy standalone one, I should be considered to be complying with my covenant to use “commercially reasonable efforts” if I do what the typical violinist would do.

So, just as a D-flat and a C-sharp aren’t the same note on a violin, “best efforts,” “reasonable efforts,” “commercially reasonable efforts,” and silence as to efforts don’t mean the same thing in contract covenants.  Just as violinists must adjust their tuning to the circumstances, contracting parties should the level of effort required to comply with covenants be adjusted in contracts to the circumstances involved.

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[1]   Originally, violin strings were made of sheep gut, and violins also were tuned to a lower (flatter) A than they currently are. As tuning changed and increased tension were placed on the strings and technical demands on violinists increased, violinists started wrapping the gut strings in metal.  Eventually, the smallest string, the e string, (which has to be quite thin to produce the required pitch and therefore, tended to break when it was made of sheep gut), transitioned to an all-metal e-string.  Although there were experiments with all metal and metal core strings, metal-wrapped gut strings remained the gold standard until the 1990’s when synthetic core strings were accepted as producing a sound comparable to gut strings with more reliability. As an early adopter of technological advancements, I am proud to say that I started using synthetic core strings in the early 1980’s.

[2]  Violin tuning is based upon acoustical physics, such that the length of the string is changed so that it produces certain wave lengths when played. In untempered tuning, a C in the key of C major might not be the same as a C in the key of D-flat major. This untempered tuning, proved to be a challenge for keyboard players, because they had to retune their entire instruments in order to play in different keys. Therefore, in the 18th century, tempered tuning, where the sizes of intervals between notes is modified slightly so that it sounds close to in tune in every key was adopted for keyboard instruments.  The method, famously taken advantage of by Johann Sebastian Bach’s Well-Tempered Clavier, now is commonly used by violinists when playing with keyboard instruments.  However, an advanced violinist still will use untempered tuning when playing unaccompanied pieces or when playing chamber music with other string players.

For more information, please contact Elizabeth A. Whitman at (301) 664-7710 or eawhitman@mirskylawgroup.com.

© 2017 by Elizabeth A. Whitman

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