| Commentary

(5) Business efficacy

| Commentary

(5)     Business efficacy

The court may imply a term which is necessary if the contract is to work properly. Even here the court will say that it is simply giving effect to the parties' unexpressed intentions: they must have intended their contract to work; therefore they must have intended any term necessary to make it work. The term must be 'founded on presumed intention and upon reason': The Moorcock (1889) 14 PD 64, per Bowen LJ. It must be 'necessary in the business sense to give efficacy to the contract': Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592, per Scrutton LJ. 'Business efficacy' (or 'business commonsense' as it was dubbed by the EAT in Marshall v Alexander Sloan & Co Ltd [1981] IRLR 264) may be but a specialised application of the 'officious bystander'

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