The limits of ‘commercial common sense’

In BMA Special Opportunity Hub Fund Ltd v African Minerals Finance Ltd [2013] EWCA Civ 416 the Court of Appeal issued a reminder about the limited nature of the role played by considerations of commercial common sense in the interpretation of a contract. Aiken LJ, following the approach taken by Eder J at first instance, stated that ‘commercial common sense is not to be elevated to an overriding criterion of construction’, that the parties should not be subjected to the individual judge’s own notions of what might have been ‘the sensible solution to the parties’ conundrum’ and that the interpretation of the term should not be interpreted by what seems like commercial common sense from the point of view of one of the parties.