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As described by a recent Delaware Chancery Court decision: [U]nder English law, βa term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed [to] it if it had been suggested to them.β The term must also βbe so obvious as to go without saying or to be necessary for business efficacy.β [65] And English law also supplies a convenient approach to determining when a term is βso obvious as to go without sayingββthe βofficious bystander test.β [66] That test asks whether βif, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common βOh, of course!ββ [67] This officious bystander is the English equivalent of our βCaptain Obviousββi.e., the person who makes those ridiculously obvious statements that prompt those who hear them to reply unanimously with βThank you, Captain Obvious,β or sometimes with an even more colorful phrase that begins with the word βno,β followed by a scatological reference, and ending with the name βSherlock.β So, if an officious bystander had suggested to the parties negotiating the pledge agreement securing the Junior Mezz Loan that there be an express provision prohibiting the Mezz Lenders from assigning the Junior Mezz Loan to a third party βas part of a backdoor deal to appropriate the value of plaintiffβs equity by conspiring with others to facilitate that scheme,β would the parties have unanimously answered βOh, of courseβ
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