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Reaching “yes” on contract terms is often made easier by using commonly-employed subjective performance clauses, rather than developing and negotiating agreement on objective criteria for contract performance. Transactional lawyers and their clients take comfort from the familiar sound of these clauses, such as “reasonable” or “best efforts” provisions, “materiality” limitations and “consent” clauses. Comfort can become angst after the closing, when the practical meaning of those familiar-sounding clauses becomes hard to pin-down.

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