The officious bystander is a metaphorical figure of English law and legal fiction, developed by MacKinnon LJ in ''

Southern Foundries (1926) Ltd v Shirlaw ''Southern Foundries (1926) Ltd v Shirlaw'' 940AC 701 is an important English contract law and company law case. In the field of contracts it is well known for MacKinnon LJ's decision in the Court of Appeal, where he put forth the " officious b ...

'' to assist in determining when a term should be implied into an agreement. While the officious bystander test is not the overriding formulation in English law today, it provides a useful guide. The suggested approach is to imagine a nosey, officious bystander walking past two contracting parties and asking them whether they would want to put some express term into the agreement. If the parties would instantly retort that such a term is "of course" already mutually part of the agreement then it is apt for implication.

Overview

In ''

'' 9392 KB 206 MacKinnon LJ wrote, The test is outdated to the extent that it suggested implication was a process dependent on what contracting parties would have subjectively intended. The main problem is that people would often disagree, or one side's

bargaining power Bargaining power is the relative ability of parties in an argumentative situation (such as bargaining, contract writing, or making an agreement) to exert influence over each other. If both parties are on an equal footing in a debate, then they w ...

would be such that they could ignore the intentions of the other party. The rule now is that terms are implied to reflect the parties' reasonable expectations as a broader part of the process of objective, contextual construction. In ''

AG of Belize v Belize Telecom Ltd is a judicial decision of the Privy Council in relation to contract law, company law and constitutional law. It concerns the correct method for interpretation and implication of terms into a company's articles of association. It was approved b ...

'',

Lord Hoffmann Leonard Hubert "Lennie" Hoffmann, Baron Hoffmann (born 8 May 1934) is a retired senior South African–British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009. Well known for his lively decisions and willingness to break ...

wrote the following: ''M&S v BNP Paribas'' (2015) confirmed that the officious bystander test remained one of necessity, not reasonableness.

Notes

{{DEFAULTSORT:Officious Bystander English contract law

Overview

See also

Notes