The following case applied the ‘officious bystander’ test to an agreement
between trade unions.
It is clear from the above case, then, that a term will only be included if
both parties would have wanted it. The court will not imply a term
involving facts known to one party but not another (as with the Bridlington
agreement, above), even if it is a good idea. The principle was applied by
Lord Pearson more recently in the next case.
Cheshire and Fifoot claim that The Moorcock is still alive. It certainly is, and
is a useful measure of whether a term may be implied. It was suggested by
Lord Denning in Liverpool City Council v Irwin (1976) that a term
concerning the maintenance of services to a block of flats should be implied
where it was reasonable. This was generally rejected, and it was said that a
term should only be implied where the nature of the contract implicitly
required it. The cases which follow it help to refine the principles and to
ensure that terms are not implied which would not have been included by
Incorporation of terms 105Spring v National Amalgamated Stevedores and Dockers Society (1956)
An agreement had been made between unions for the transfer of
members from one union to another, known as the Bridlington
agreement. The defendant union admitted Mr Spring without including
this in their contract. When it was later suggested that it was implied,
the officious bystander test was used. If Mr Spring had been asked
whether he had intended this agreement to be included in his contract,
he would not have known about it, so the answer would have been ‘no’.Trollope and Colls Ltd v North West Regional Hospital Board (1973)
An unexpressed term can be implied if and only if the court finds that the
parties must have intended that term to form part of their contract. It is not
enough for the court to find that such a term would have been adopted by
the parties as reasonable men if it had been suggested to them; it must have
been a term that went without saying, a term necessary to give business
efficacy to the contract, a term which although tacit, formed part of the
contract which the parties made for themselves.Wilson v Best Travel (1993)
In this case the court used a similar analysis to that in Trollope and Colls.
A customer claimed that, applying the officious bystander test, a holiday
company would have intended to include a term that a hotel would be
reasonably safe. The courts did not agree as the standard of the hotel was
too remote to be within the knowledge of the operator.