Terms

Question 1

Marks And Spencers V BNP Paribas - Ratio

Answer 1

AG of Belize v Belize Telecom led to widespread misinterpretation of the law. Reiteration that business efficacy and the officious bystander are the main tests to be used.

Reasonableness is not sufficient.

Construction of contract and implication are separate.

Necessity is not one of absolute necessity, however ( Neuberger commenting on BP Refinery and Phillips Electronique V BSkyB) - Objective not subjective test, reasonable people, not the parties themselves. Vital when using officious bystander to formulate question properly.

Question 2

What case demonstrates how the courts have not applied the necessity test absolutely stringently?

Answer 2

Equitable Life Assurance v Hyman - Business necessity not absolute necessity.

Question 3

Bunge v Tradax

Answer 3

Default position is that a term is an innominate term in English law, unless proven otherwise.