What is the test for determining an implied clause in a lease?
British Columbia, Canada
The following excerpt is from Lai et al. v. Kmart Canada Co., 2000 BCCA 19 (CanLII):
Reference was made by a member of the court during the hearing to the “officious bystander” test; see Shirlaw v. Southern Foundries (1926) Ltd., [1939] 2 KB 206. That sort of consideration has more general application when one is discussing terms to be implied into a contract but it may not be entirely wide of the mark here. What a court construing a document like the lease in question here is endeavouring to do is to ascertain the meaning of the language employed by the parties. What have the parties expressed as the meaning of their agreement?
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