A haulier contracts to carry a seafood supplier's live lobsters from a port to a London market in its 'refrigerated lorry'. The contract says nothing about whether the haulier will keep the refrigeration unit switched on during the journey. A court is asked to imply such a term. On what basis is a court most likely to imply it?

Correct answer: D) It is necessary to give the contract business efficacy, and both parties would obviously have agreed to it

Explanation

Courts imply terms in fact only where the term is necessary to give the contract business efficacy (The Moorcock), or where it is so obvious that it goes without saying (the officious bystander test, Shirlaw v Southern Foundries). In Marks & Spencer v BNP Paribas the Supreme Court confirmed that reasonableness or fairness alone is not enough. Courts will not imply a term just because it seems fair, would be preferred by one party, or would improve the bargain.