ABSTRACT

It seems that if either test is satisfied, a term may be implied.40 However, the difficulty here is that the officious bystander test is based on the presumed intention of both parties, whereas to make a contract workable under the efficacy test involves consideration of what the reasonable person considers necessary and involves imposing an obligation, despite the intentions of the parties.41 What does appear to flow from both tests is that a term cannot be implied simply because it is reasonable to do so. However, the language used by the courts sometimes suggests that reasonable terms may be implied.