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As described by a recent Delaware Chancery Court decision: [U]nder English law, “a 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.” The term must also “be so obvious as to go without saying or to be necessary for business efficacy.” [65] And English law also supplies a convenient approach to determining when a term is “so obvious as to go without saying”—the “officious bystander test.” [66] That test asks whether “if, 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 ‘Oh, of course!’” [67] This officious bystander is the English equivalent of our “Captain Obvious”—i.e., the person who makes those ridiculously obvious statements that prompt those who hear them to reply unanimously with “Thank you, Captain Obvious,” or sometimes with an even more colorful phrase that begins with the word “no,” followed by a scatological reference, and ending with the name “Sherlock.” 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 “as part of a backdoor deal to appropriate the value of plaintiff’s equity by conspiring with others to facilitate that scheme,” would the parties have unanimously answered “Oh, of course”
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Traditionally, soil and marine environments have provided a rich reservoir from which diverse chemical scaffolds could be discovered
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