With respect to the implicit or implied principle of the concept derived from the above-mentioned common law, there is no doubt that the Tribunal will be compelled to bear in mind the provisions, principles and values of the Constitution in interpreting a tacit or implied provision in an agreement, given that the Constitution imposes an obligation on the courts to develop the common law, that it is consistent with constitutional values. With regard to Pan American World Airways Inc/South African Fire and Accident Insurance Co Ltd, the first step in the investigation into the existence of such a provision is to determine whether there is any leeway for the importation of the alleged tacit provision into the agreement. The Tribunal decided that such termination did not mean that there was a deviation from the terms of the original contract. Although there was a non-variation clause, the defense of a tacit choice of termination was a good defense, if proven. In Ocean Echo Properties vs. Old Mutual, the parties entered into a lease agreement. The landlord sued the tenant for rent and other late charges. The tenant pleaded that he had left the premises earlier, even though he was not in default. The tenant stated that the landlord then entered into a tacit agreement with a new tenant. By authorizing the occupation of the new tenant and receiving rent from him, the previous rent asserted that the lessor had then entered into a tacit agreement with the new tenant. This tacit agreement, if demonstrated, would have the effect of terminating the operation of the original lease with respect to future liabilities, without prejudice to obligations arising from the previous operation of the lease (e.g. B rent arrears).
Tacit conditions are effective when interpreting agreements and can lead to lengthy litigation; Therefore, everyone should be vigilant when it comes to agreements to ensure that a comprehensive agreement is reached in order to mitigate future conflicts related to tacit conditions. The lessor argued that the lease contained a non-modification clause and that the alleged implied termination amounts to an amendment or modification of the lease, without reducing it to written form and signature; and, therefore, the alleged implied termination contradicted the explicit provisions of the rental agreement. In Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration, the Tribunal established a tacit name: . . . an unsused provision of the Treaty, which derives from the common intention of the parties, as the Court may infer from the explicit contractual conditions and the circumstances connected with them. ». . . .