Despite there being no explicit agreement on the amount of an intermediary’s commission, the client’s consent to payment of the commission may arise from the circumstances rather than an express agreement.
A recent English case (on solicitors’ fees but pertinent here) points out that informed consent to pay commission may arise when the client knows
Where a non-variation clause and a whole agreement clause were included in a comprehensive contract dealing in detail with the subject matter between the parties, the court refused to import a tacit term into the contract.
A tacit term is an unexpressed provision in the contract which derives from the common intention of the parties
Our law recognises that an agreement can be concluded tacitly to replace a previous agreement and a non-variation clause does not preclude the parties from doing so. This principle was recently confirmed by the Supreme Court of Appeal.
In Ocean Echo Properties v Old Mutual the parties were contracting under a lease. The landlord sued