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For my part, I think that there is a test that may be at least as useful as such generalities. If I may quote from an essay which I wrote some years ago, I then said: “Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course!’” At least it is true, I think, that, if a term were never implied by a judge unless it could pass that test, he could not be held to be wrong.}} | For my part, I think that there is a test that may be at least as useful as such generalities. If I may quote from an essay which I wrote some years ago, I then said: “Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course!’” At least it is true, I think, that, if a term were never implied by a judge unless it could pass that test, he could not be held to be wrong.}} | ||
The law of implied terms develops, minutely. In {{cite|Marks and Spencer plc|BNP Paribas Securities Services Trust Company (Jersey) Limited|2015|UKSC|72}} Lord Neuberger drew a distinction between “officious bystander” implications of the Shirlaw variety, and “legal” implications: | |||
{{quote|As Lady Hale pointed out in {{cite|Geys|Société Générale|2013|1 AC|523}}, para 55, there are two types of contractual [[implied term]]. The first, with which this case is concerned, is a term which is implied into a particular contract, in the light of the express terms, commercial common sense, and the facts known to both parties at the time the contract was made. The second type of implied terms arises because, unless such a term is expressly excluded, the law (sometimes by statute, sometimes through the common law) effectively imposes certain terms into certain classes of relationship. }} | |||
One can get tangled up in intentionality, of course. To avoid the same public policy outcomes that the criminal law solves by ''ignorance is no excuse'' — implausible special pleading that that is not what I understood the contract to mean when plainly it could not mean anything else, there is a degree of objectivity, if not intentionality: | |||
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In {{cite|Equitable Life Assurance Society|Hyman|2002|1 AC|408}}, 459, Lord Steyn rightly observed that the implication of a term was “not critically dependent on proof of an actual intention of the parties” when negotiating the contract. If one approaches the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting.}} | |||
====A single holistic exercise?==== | |||
In {{cite|Attorney General of Belize|Belize Telecom Ltd|2009|1 WLR 1988}} Lord Hoffmann looked longingly towards this all being part of a single exercise of construction: | |||
{{quote|“There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?”}} | |||
Lord Neuberger, however, looked resolutely away. | |||
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It is necessary to emphasise that there has been no dilution of the requirements which have to be satisfied before a term will be implied, because it is apparent that ''Belize Telecom'' has been interpreted by both academic lawyers and judges as having changed the law.}} | |||
And later | |||
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However, Lord Hoffmann’s analysis in ''Belize Telecom'' could obscure the fact that construing the words used and implying additional words are different processes governed by different rules. | |||
[27] Of course, it is fair to say that the factors to be taken into account on an issue of construction, namely the words used in the contract, the surrounding circumstances known to both parties at the time of the contract, commercial common sense, and the reasonable reader or reasonable parties, are also taken into account on an issue of implication. However, that does not mean that the exercise of implication should be properly classified as part of the exercise of interpretation, let alone that it should be carried out at the same time as interpretation. When one is implying a term or a phrase, one is not construing words, as the words to be implied are ''ex hypothesi'' not there to be construed; and to speak of construing the contract as a whole, including the implied terms, is not helpful, not least because it begs the question as to what construction actually means in this context.}} | |||
===Implying {{tag|commercially reasonable}} behaviour=== | ===Implying {{tag|commercially reasonable}} behaviour=== | ||
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{{sa}} | {{sa}} | ||
*[[LIBOR rigging part 2]] | |||
*[[commercially reasonable manner]]: A long and (cough) erudite discussion about the concept. | *[[commercially reasonable manner]]: A long and (cough) erudite discussion about the concept. | ||
*{{cite|Shubtill|Director of Public Prosecutions|2022|JCLR|86}} | *{{cite|Shubtill|Director of Public Prosecutions|2022|JCLR|86}} | ||
{{Ref}} | {{Ref}} | ||