Commercial Litigation – The Use of “Efforts” Clauses

Giselle Ayala Mateus, Esq.

Commercial litigation involves the understanding of different concepts. In that case of breach of contract controversies, understanding the language of the contract is critical for the outcome of the case. The ideal is that a contract is crystal clear so that both parties have an equal understanding of it’s terms are. However, that is not always the case.

What is a Vague Term?

In New York, the first reference to understand the meaning of a contract is the  parties’ intent. The contract is generally the best evidence of what the parties intend, in other words, the contract is supposed to contain the written agreement if the parties.

If a contract term, is not clear or may have more than one meaning. Then, the contract term us vague.  In this case, extrinsic evidence of the parties’ intent will be considered.

Pursuant to New York case law a contract is vague if it is reasonably susceptible of more than one meaning.

To determine the existence of ambiguity is determined by examining the entire contract, the relation of the parties and the circumstances under which the contract was executed.  

The “efforts” provision

An “efforts” provision is included in a contract to qualify or define with additional detail the obligations of the parties.

Efforts clauses are mostly used to control the outcome of a contract. For this reason, the logic underlying an efforts clause is that a party take some level of effort to achieve a desired result. If a party fails to act according to the “efforts clause” and the said desired result is not achieved this may constitute a breach of contract.

There are three types of commonly used efforts clauses:

– Best efforts

– Reasonable efforts

– Commercially reasonable efforts


The Reasonable Efforts Provision

Under New York law, these efforts terms do not require a party to act against its own business interests. The general view of the courts is that a party who agrees to exercise his commercial reasonable efforts is obligated to act as a person of good judgement in it’s own business, subject to the duty of good faith and fair dealing.

In the context of litigation, courts have wide latitude in determining what the parties may intended under an agreement and attempting to reconcile the efforts clause with other provisions of the contract. However, in cases where the parties intent was not clear, the judge may issue a judgment contrary to the actual intent if the parties at the time they entered into the agreement.

Judges will often look to the transaction surrounding facts and circumstances to determine the meaning of the efforts clause with a reasonable degree of certainty.

The Best Efforts Clause

First, it is very important to note that a best efforts clause should always be used with much care. In most cases, New York courts have understood that a best-efforts clause requires (i) a higher standard than mere good faith and (ii) a party to pursue all reasonable methods to achieve the desired result.

In Strauss Paper Co. v RSA Exec. Search, a recent case, the parties had an agreement that expressly held that one party must use its best efforts to secure tax benefits. Here, the defendants argued that the clause was too vague to be enforceable, specially because there were no clear guidelines by which the defendant could be judged.

In this case, the Court refused to dismiss the case and held that a best efforts clause is enforceable if “external standards or circumstances impart a reasonable degree of certainty to the meaning of the phrase best efforts.”

So, What can I do to Reduce Uncertainty?

The best option is always to take the time to draft an agreement that both parties understand, to read the contract and clarify questions and to avoid the use of legal language that is subject to multiple interpretations. Let’s see how can we achieve this:

First, if you can avoid the inclusion of an efforts clause and agree to specific result results or milestone that must be completed throughout the execution of the agreement. You may also include a termination clause that allows to walk out of the deal if the transaction is not working as expected.

Second, define what is meant by “best”, “reasonable” or “commercially reasonable” efforts. You may define these concepts with example or a list of minimum expected results or milestones. An efforts clause may also include exceptions, so that both parties know what is out of the scope of the efforts clause like commencing litigation, incurring excess costs, taking actions that are illegal, or taking action that would reasonably be likely to expose the party to liability.

Finally, include some kind of reference marker of an objective standard to determine if a party has performed as expected. For example, if a party is required to give a notice or take other action as part of an efforts clause, state the date by which the notice must be given.

In sum…

The purpose of a contract is to define the terms of business relationship so that all parties involved understand their rights and obligations. Considering that parties of a contract may fail to perform as expected, it is crucial to use language that is clear and leave no room for multiple interpretations.


New York City Business Lawyers – NYC

Dedicated to our clients and their success

When you have a business problem that requires legal attention, you need a New York City business lawyer who understands business. You need a business attorney who realizes that a legal disagreement can be handled and that a wrong decision has the potential to destroy a company.

Call (347) 329-3952 today to schedule your free consultation with an NYC business lawyer.

Our law firm based in New York provides legal services to a variety of businesses, small business owners, and business entities. We help our clients with business law, business contracts, intellectual property, operating agreements, business transactions, real estate, business formation, and more within NYC, New York. We are small business lawyers that are dedicated to helping business owners protect their businesses.

Business Formation

Planning for and minimizing risk is essential to every business, especially when it comes to small businesses. By retaining our office, you will access a team of forward-thinking professionals who can design a cost-effective strategy that protects your business from start-up to exit planning. G.A.M. Law Office in NYC organizes and forms new companies for prospective business owners, which includes choosing an appropriate legal structure, drafting internal governing documents, and providing legal counsel in matters related to corporate governance.

Business Dissolution

A business dissolution attorney represents companies and the individuals who own and operate them in the negotiation of business termination transactions, the sale of businesses, litigation, actions seeking to legally separate the owners of these business entities, and derivative and direct actions, among others. If you or your company wants to bring or needs a law firm to defend it in business dissolution litigation or other corporate litigation, contact the New York business lawyers of G.A.M. Law Office.

Commercial Agreements

Commercial Agreements may come in all different types of forms, depending on the purpose of the parties. At G.A.M. Law Office, we are relentless in our efforts to understand your business so that we can provide support and advice which is both practical and reflects the commercial reality. You can trust our team of business attorneys, we will give you clear and accessible advice on everything from one-off, specific queries arising from your own business negotiations; to picking up and delivering on complicated, time-critical negotiations.

Corporate Compliance

Corporate compliance affects a wide spectrum of business issues, including those related to management, shareholders, suppliers, and third parties. To ensure success and stability, a corporate compliance program can make a difference. Whether you have a program or need representation for a lawsuit, consult with a corporate compliance lawyer first.

Non-for-profit Law

Non-profit organizations handle many of the same issues that affect businesses. An attorney can help your non-profit if you’re just starting up and need guidance on the paperwork that needs to be filed, when you file taxes, or when you need counsel to deal with litigation.

Call (347) 329-3952 today to schedule your free consultation with one of our business lawyers in New York.

What prospective business owners can expect when working with G.A.M. Law


The Best Business Legal Structure

We will closely collaborate with you to decide on the most appropriate legal structure for your business.


Internal Governing Documents

We will help draft and construct internal governing documents that best serve you and your business.


Corporate Governance Legal Counsel

We provide legal counsel in matters related to corporate governance.

New York Business Formation – Selecting A Business Entity

Ownership v. Control v. Income

When it comes to selecting a business entity to take your enterprise to the next level, it is essential to understand those key factors that make the difference, and ownership is only one of them. Control, governance structure, transferability, and income potential are some of the most important factors you consider before choosing between an LLC, Corporation, Partnership, or any other business structure.



It is important to understand that some legal entities limit the owner’s control and management more than others. This is important because those who manage the organization make important decisions such as the distribution of profits, the purchase of machinery, or any other decisions related to the business’s day-to-day activities. 

In general terms, partnership, limited or unlimited, allows owners to control and manage the business. Limited partnerships have a particularity; there are two types of owners. An unlimited partner, who responds personally for all liabilities and obligations acquired as a result of carrying on the business, and limited partners who contribute money or other assets, who do not get involved with the management of the business, and whose responsibility extends only to amount of their contribution to the partnership. If a limited partner gets involved in the management of the business, he no longer enjoys the benefit of limited liability. 

Corporations do not allow owners to manage the business’s day-to-day activities unless they are elected as directors or corporate officers. On the other hand, LLCs allow the owners or “members” to select whether they want to manage the business themselves or whether they want to elect managers to handle the business. 

Our small business lawyers can help you understand the advantages and disadvantages of each business formation prior to finalizing your decision.

Governance Structure

Governance structure speaks of the number of people and the roles needed in the organization to manage it properly. The more complex the governance structure is, the more costs and time a business requires. 

Partnerships require only two or more people to join efforts to carry on a business as co-owners. However, more complex business entities, such as corporations, require a more complex structure. 

Corporations cannot be managed by their owners unless they are elected as directors or officers. A board of directors manages the corporation. Of course, a corporation can be an entity with only one owner. In that case, the sole shareholder occupies all positions. Nevertheless, even that single owner must demonstrate that corporate formalities are followed to handle the business for purposes of compliance. Corporate formalities are important, especially to keep the “corporate veil,” in other words, to keep the benefit of the limited liability. 

LLCs can be managed by their members (Member-Managed LLC) or by one or more managers (Manager-Managed LLC). In either case, the formalities are important to keep the protections of the “corporate veil”. 


You may think that by owning a business in New York, you will automatically receive income from it. Well, it may not be as simple as that. In the case of a business owner who does not incorporate, in other words, who does not form a legal entity, that business owner receives income directly from his customers. However, when a legal entity is created or the business owner is in partnership with another, the situation changes.

Partners share equally in the monetary benefits of the business unless there is an agreement to the contrary. Unlike other legal forms, when it comes to partnerships, income is distributed equally regardless of the number of contributions made by each partner. In the case of limited partnerships, unless otherwise agreed to, partners share equally the income of the business, but their responsibility is different. There is one partner who is personally responsible and other partners who enjoy limited liability.

In the case of New York corporations, it is important to understand that the ones who run the business and decide whether income is distributed are the members of the board of directors by vote. Directors receive compensation from the company for their roles. If owners of the corporation want to receive income directly from the corporation, one way is to be a director or an employee of the corporation. Now, if the owners of the corporation, who are not employees or directors, want to receive income by way of dividend distributions, they have to wait for the directors to approve such a distribution. To deal with these, corporate shareholders select directors, at least one, who will support their interests and advocate for these distributions.

In the case of an LLC in New York, it all depends on the rules stated by the members of the LLC. If the LLC members agreed that a manager would make the decision of profit distributions, they should set some guidance or rule for making such a discretionary decision. On the other hand, if the LLC is member-managed, distributions of income will be decided by the members by vote, according to the percentage of interest in the LLC.

Our New York Business attorneys at G.A.M. Law Offices can help you with choosing the business structure and formation for your particular situation. In New York City there are various legal business formations and structures that are available to business owners or partners. Contact the business law lawyers at G.A.M. Law offices today.


Another important aspect to consider is the transferability of the interest in the business. We all want to be successful in our business endeavors; however, things could go wrong; in that case, it would be great to be able to transfer your interest in the business to someone else. In the case of a partnership, the concept of transferability rarely applies because partners come together in consideration of each other’s personal characteristics. Additionally, since no express or written agreement is required to create a partnership, no special formality is required to end it.

Limited partnerships must be agreed to in writing. Consequently, whether an interest in a limited partnership is transferable depends on the terms of the agreement. Usually, general partners cannot transfer their interest because they are in charge of the management, responding personally. If a partner who has management and control of the business wants to leave, unless the other partners agree to continue with the business, the business must be dissolved.

Shareholders, owners of shares, own corporations. In general terms, the shares of a corporation are freely transferable. However, in real (practical) life, the transferability of shares also depends on the existence or not of a market for the shares. If the shareholder who wants to leave has no agreement that protects his interest or is a minority shareholder who cannot influence the decision-making process, it is unlikely that the individual will find a buyer for his shares. On the other hand, if the corporation is one of those who trade their share in the capital markets, such as the New York Stock Exchange, it is more likely that the shareholder who wants to leave finds a buyer.

LLCs are a mix of different concepts. As a result of that, the transferability of a member’s interest depends on the terms of the LLC agreement. There are cases in which a Member-Managed LLC has an agreement that limits the transferability of interest or states that even if a member sells his interest, the new member will not be allowed to get involved in the LLC management.

In conclusion… before selecting a business entity, keep in mind that different factors are worth reviewing and that an attorney can help you make the right choice because she will be able to explain the terms of an agreement mean. For more information, feel to call or email. Our New York City law office will be happy to guide you and see your success.

Call (347) 329-3952 today to schedule your free consultation with an experienced business lawyer in NYC.

Business & Entrepreneurship

What Should Entrepreneurs Know About Incorporation and Business Structure?

There are tax and legal considerations for organizing your business as something different from a sole proprietorship. Incorporation allows you to protect your personal assets, acquire limited liability, especially in risky endeavors, and take advantage of deductions tax benefits provided to the business. Additionally, start-ups and small businesses incorporated have a better chance of getting investors because no investor wants to be involved in a project that offers to risk limits.


Protection of personal assets

Once a business is incorporated, the business is a legal entity (like a person) different and separate from its owners. The assets acquired by the business entity are not the owners’ assets and cannot be attached by creditors. In order words, creditors or third parties may only sue the business to recover money or damages. Following the same logic, the assets of the individuals that own the business are separate property. The separation of assets allows business owners to protect their personal assets from the risk and liabilities associated with carrying on business activities. Additionally, it allows business owners to organize their affairs and have a clearer picture of the real situation of the business.

Limited liability

The great endeavors of businessmen have been achieved thanks to limited liability. Limited liability refers to the fact that those involved in a business may only respond to the extent of the amount contributed to the business. Limited liability allows investors and entrepreneurs to measure and control their risks. Additionally, the possibility of limiting one’s liability creates opportunities to transfer interest in a business easily and also increases the number of participants.


If you are looking for investors, you have a better probability of getting investors if you are incorporated. If there is anyone interested in putting money into your business, they will more likely do it if they also enjoy the benefits of asset protection and limited liability. Additionally, once a company has been incorporated is in a better position to hire personnel, assume risks and operate.

Choosing the Right Legal Entity

What is a Partnership?

Even though partnerships remain one of the most straightforward business structures in New York and the rest of the United States, it is available for those who want to work together to make their business a success. It is important to understand that partnerships do not benefit from limited liability. Partnerships require minimal paperwork, and they rarely require public filings. Additionally, no one should be part of a partnership without a well-drafted agreement. If you are looking to start your own partnership, a business lawyer can help you draft the best possible partnership agreement for your needs. At the New York Law Office of Giselle Ayala Mateus (G.A.M. Law), we can help you decide whether a limited partnership or general partnership is right for your needs and help you draft the necessary documentation quickly.

Partnership Formation

A partnership is basically an agreement to carry on a business a co-owners. A partnership may be formed without an express agreement. In this scenario, the main risk is to end up in a relationship that binds you fully to the unauthorized conduct of another. With an agreement, however, you may choose the type of partnership you want to form, limit the partner’s authority, agree on the distribution of costs and profit, exclude business from the partnership, and more.

Types of partnerships

A partnership may be a general partnership or a limited partnership.

General Partnership (GP)

General partnerships make up most partnerships in the U.S., as they are the simplest type of partnership available. In general partnerships, each partner is involved in the day-to-day management of the business and shares in the unlimited liability agreed to under this structure.

Limited Partnership (LP)

Like a general partnership, general partners in limited partnerships run the business and take on unlimited liability. Unlike general partnerships, however, limited partnerships can have “silent” limited partners who are not involved in the business’s operations and have liability limited to the amount of their investment.

What is an LLC?

A limited liability company or LLC is a special business structure in the United States that combines some elements of the corporation and some attributes of a partnership. The owners of an LLC enjoy the privilege of limited liability. However, they are taxed as a partnership (only once). The owners of the LLC are called “Members.” Limited liability companies are hybrid entities. The regulations surrounding LLCs may vary from one state to another. Many states don’t restrict ownership, which means that anyone can be a member, including individuals, corporations, foreigners and foreign entities, and even other LLCs.

Formation of an LLC

The formation of an LLC requires a formal act of filing the Articles of Formation or Article of Organization with the Secretary of State of the jurisdiction where the LLC is formed. Additionally, as opposed to corporations, LLCs are governed by an Operating Agreement. This document is equivalent to the By-Laws. Additionally, to form an LLC, you need at least to complete the following steps:

  • Choosing an available business name
  • Deciding if the LLC will be Member-Managed or Manager-Managed.
  • Filing articles of organization with the state
  • Paying filing fees and license fees if necessary
  • Creating the operating agreement for your business
  • Holding your first annual meeting

The formation of an LLC can be easier than a corporation. Additionally, an LLC is easier to manage since it is not obligatory to have a board of directors, a secretary, and a treasurer. On the other hand, if you have plans to expand your business or go public, it may be better to form a corporation from the beginning. Given the flexibility of LLCs, this is also an interesting structure for short-term transactions when the parties involved want to benefit from limited liability. For instance, to buy or sell real estate.

What is a Corporation?

A corporation is a business organization separate and different from its business owners. A corporation is a legal person. Corporations are their own legal entity which the owners control through the shares they have in the company, by electing directors or by being elected as the directors or the officers of the corporation. When incorporating, you will have the opportunity to state how many shares you own as the corporation’s register.

Forming a Corporation

To form a New York corporation, it is important to make legal and accounting considerations. If you are a business owner conducting activities overseas, keep in mind that the rules applicable to corporations may change from one state to another. Additionally, you have the option to file an application for authority to operate as a foreign company, or you may form a domestic corporation. To form a corporation, you need at least to complete the following steps:

  • Choosing an available business name
  • Appointing directors
  • Filing articles of incorporation with the state
  • Paying filing fees and license fees if necessary
  • Creating bylaws for your business
  • Holding your first annual meeting
  • Issuing stock certificates

Bylaws are not a legal requirement, but they are highly recommended. Corporate directors will also need to be appointed, and a registered agent may be a necessity to receive official notices from different agencies such as the Department of State or the IRS.

If you haven’t set up your corporation, our office can help you with all the necessary steps, from incorporating document drafting and ongoing legal counsel for compliance. If you are unsure of which entity to choose, seeking help from a lawyer is recommended.

Public and Private Corporations

The main difference between private and public corporations is that public corporation negotiates their share freely in the capital markets. A publicly owned corporation will allow investors to be able to buy shares of your corporation. When going public, your corporation must follow further rules and regulations to adhere to the strict rules of the U.S. Securities and Exchange Commission (SEC).

A private corporation, on the other hand, aka a closely held corporation, is an entity whose shares cannot be freely negotiated. There is no market for them. Owners of a closely held corporation usually profit from the entity by receiving a salary for their services as directors or officers or by distributing dividends.

Public and Private Corporations

The main difference between private and public corporations is that public corporation negotiates their share freely in the capital markets. A publicly owned corporation will allow investors to be able to buy shares of your corporation. When going public, your corporation must follow further rules and regulations to adhere to the strict rules of the U.S. Securities and Exchange Commission (SEC).

A private corporation, on the other hand, aka a closely held corporation, is an entity whose shares cannot be freely negotiated. There is no market for them. Owners of a closely held corporation usually profit from the entity by receiving a salary for their services as directors or officers or by distributing dividends.

What is a Limited Liability Partnership or LLP?

Limited Liability Partnerships or LLPs are a flexible legal and tax business organization that allows partners to benefit from economies of scale by working together while also reducing their liability for the actions of other partners. The LLP is a formal business structure that requires a written partnership agreement. Additionally, as in a general partnership, all partners in an LLP can participate in the management of the partnership.

Formation of an LLP

To form an LLP, the partners must complete a formal act of filing papers before the Secretary of State. Additionally, only certain professionals are authorized to form LLPs. Limited liability partnerships are generally connected to firms of lawyers, accountants, architects, and similar professions.

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