officious bystander test

Definition

Technique for determining if an unexpressed condition was implied at the time a contract was drawn. In this test, an arbitrator or investigator tries to ascertain what would have been the reply of the contracting parties if a nosy-bystander had then asked them, "Do you intend to include the term 'x' in the contract?" If the parties, under the circumstances prevailing at that time, would have answered "Yes, definitely!" then the term 'x' is assumed to be an implied term. However, a term is not deemed to be implied simply because it seems logical or reasonable under the current circumstances.