The officious bystander is a metaphorical figure of

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

and

legal fiction A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation. Legal fictions are different from ...

, 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'' 9392 KB 206 MacKinnon LJ wrote, The test is outdated to the extent that it suggested implication was a process dependent on what contracting parties would have subjectively intended.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 a negotiation (such as bargaining, contract writing, or making an agreement) to exert influence over each other in order to achieve favourable terms in an agreement. This power is derived f ...

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'', Lord Hoffmann 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 Legal fictions

Overview

See also

Notes