In Robert Bou-Simon v. BGC Brokers LP  EWCA Civ 1525, the Court of Appeal considered deleted provisions and implied terms. Although in the context of an employment contract, the decision obviously has wider application.
The Court held that the judge at first instance had not properly applied the legal test for the implication of contractual terms, as established in Marks & Spencer Plc v. BNP Paribas Securities Services Trust Co (Jersey) Ltd  AC 742.
It was emphasised that in such cases, it is important to:
- Approach the matter of the implied term from the perspective of the reasonable reader of the contract, with an awareness of its provisions and the surrounding circumstances, at the time the contract was made, not at the time at which the dispute comes before the Court.
- Consider the issue of implied terms only after the process of construing the express words of the contract has been completed.
- Remember that it is not necessary to give business efficacy to a contract to imply a term to deal with circumstances which are not just omitted from the express terms but are outside the scope of the agreement altogether.
- Exercise care when considering the question to pose to an official bystander when asking whether a term is so obvious as to be implied (this is reminiscent of the notice of redelivery cases, where, you will remember that, one of the problems was not being able to work out what term was to be implied).
The case will also be noted for considering the extent to which we should consider deleted provisions when seeking to imply terms, a distinction being drawn between what one can consider when construing written terms and what can be taken into account when considering whether a term should be implied.
LJ Singh said, albeit obiter, that he can see the force in the suggestion that “the consideration of deleted words may negative the implication of a term in the form of those deleted words”. He added that he does not necessarily accept that, in the context of implied terms, there is a threshold requirement that there must be an ambiguity in the contract before deleted words can be admissible.