What is custom, Custom as sources of Law

Habitual conduct of the majority of people doing with some belief is custom A custom is a law not in written form it may be punishable or not but sometime the violation of custom is highly punishable
What is custom, Custom as sources of Law
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Definitions of Custom

According to Salmond ''Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.''

According to Keton ''Those rules of human action, established by usage and regarded as legally binding by those to whom the rules are applicable which are adopted by the courts and applied as source of law because they are generally followed by the political society as a whole or by some part of it''

According to Carter 'This simplest definition of custom is that it is the uniformity of conduct of all persons under like circumstances.''

According to Austin ''custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by the political superior.''

According to Allen ''Custom as a legal and social phenomenon grows up by forces inherent in society, forces partly of reason and necessity and partly of suggestion and limitation.''


Origin of custom

Custom is the oldest form of law-making. A study of ancient law shows that in primitive society, the lives of the people were regulated by customs which developed spontaneously according to circumstances.

When the same thing was done again and again in a particular way, it assumed the form of custom.

According to Vinogradoff ''social customs themselves obviously did not take their origin from an assembly or tribunal. They grew up by gradual process in the households and daily relations of the clans, and the magistrate only came in at a later stage, when the custom was already in operation, and added to the sanction of general recognition the express formulation of judicial and expert authority.'

Binding Force of Custom 

There are many reasons why custom is given the force of law

National Conscious as Principles of Truth, Justice and Public Policy Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public policy. The very fact that any rule has the sanction of custom raises a presumption that it deserves sanction of law also. Judges are inclined to accept those rules which have in their favor the prestige and authority of long acceptance.

Existence of an Established Usage Another reason for the binding force of custom is that the existence of an established usage is the basic of a rational expectation of its continuance in the future.

Custom is observed by a Large Number of Persons Sometimes custom is observed by a large number of persons in society and in course of time the same comes to have the force of law. Reference may be made in this connection to the custom of giving 3 days of grace on bills of exchange.

Custom rests on the popular convention  Custom rests on the popular convention that it is in the interest of society. This connection is so strong that it is not found desirable to go against it.

According to Paton Custom is useful to the law giver and codifier in two ways. It provides the material out of which the law can be fashioned--- it is too great and intellectual effort to create de novo. Psychologically, it is easier to secure reverence for a code if it claim to be based on custom immemorial observed and themselves true even though historically the claim can't be substantiated. There is inevitably a tendency to adopt the Maxim “whatever has been authority in the past is a safe guide for the future”.


Requisites of a Valid Custom

Immemorial Custom to be valid must be proved to be a memorial.

According to Blackstone A custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth  not to the contrary. So that if anyone can show the beginning of it, it is no good custom.

Reasonable  Another essential of a valid customer is that it must be reasonable. It must be useful and convenient to the society. If any party challenges a custom, it must satisfy the code that the custom is unreasonable.

Custom is Continuously Observed Only that custom is valid which has been continuously observed without any interruption from time immemorial. If a custom has not been followed continuously and uninterruptedly for a long time, the presumption is that it never existed at all.

Custom must be a Peaceful The enjoyment of a custom must be a peaceful one. If that is not so, consent is presumed to be wanting in it.

Custom must be certain and Definite A valid custom must be certain and definite. In one case, a customary easement was claimed to cast on the lands of neighbors the shadow of overhanging trees. It was held to be vague and indefinite on the ground that the shadow of overhanging trees was a changing occurrence.

Compulsory observance custom is valid if its observance is compulsory. It is the duty of the court to satisfy itself that the custom is observed by all concerned and not by anyone who pleases to do so.

Custom must be general and universal the custom must be General or universal. According to Carter, ''custom is actual only when it is universal or nearly so. In the absence of unanimity of opinion, custom becomes powerless, or rather does not exist''.

Custom must not be opposed to public policy custom must not be opposed to public policy or the principles of morality.


Case law

(ILR/Mad 235(PC)

If the custom setup was one to sanction not merely the transfer of the Trusteeship, but as in this case the sale of a Trusteeship is for the pecuniary advantage of the trustee, they would be disposed to hold that circumstances circumstance alone would justify a decision that the custom was bad in law.

Customer must not conflict with the statute law valid custom must not conflict with the statute law of the country. According to Coke:'' No custom for prescription can take away the force of an act of parliament.'


Kinds of Custom

Customs are of two kinds, namely:

  •  Legal custom
  • Conventional custom


Legal Custom 

The legal custom is one whose legal authority is absolute. It possesses the force of law properio vigor. The parties affected May agree to a legal custom or not but they are bound by the same. Legal customs are of two kinds.

  • Local Custom
  • General Custom


Local Custom

Local custom is that which prevails in some define locality only such as drought or County and constitutes a source of law for that place only. 

A local custom may be valid and operative at the source of law, it must confirm to certain requirements. It must be reasonable. It must confirm to statute law. It must have been observed as obligatory. It must be of immemorial antiquity.

General Custom

A General customers that which prevails throughout the country and constitutes one of the sources of the law of the land. There was a time when common-law was considered to be the same as the general custom of the realm followed from ancient times.

Quote

             '' The common law of realm is the common custom of the realm.''


Conventional Custom or Usage

 A conventional custom is one whose authority is conditional on its acceptance and incorporation in the agreement between the parties to be bound by it. A conventional custom is an established practice which is legally binding because it has been expressly or impliedly incorporated in the contract between the parties concerned.

When two parties enter into an agreement, they don't put down in black and white all the terms of the contract. There are certain implied terms which can be omitted. The expressed terms of the contract are merely its Framework or skeleton. The contract becomes complete only when we take into consideration the implied terms. The intention of the parties to the contract can be gathered from the customary law and other things which can reasonably be taken to be implied in the contract. The custom of the locality or trade or profession are taken to be included in the contract. The courts are bound to take notice of these customs.

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