custom-jurisprudence

7/26/2019 Custom-jurisprudence

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Custom

Definition

Salmond:Custom is the embodiment of those principles which have commended themselves to the

national conscience as principles of justice and public utility .

Keeton: Customary law may be defined as those rules of human action , established by usage and

regarded as legally binding by those whom the rules are applicable , which are adopted by the courts andapplied as sources of law because they are generally followed by the political society as a whole or bysome part of it.

Carter : The simplest definition of custom is that it is the uniformity of conduct of all persons underlike circumstances .

Holland: Custom is generally observed course of conduct .The best illustration of formation of suchhabitual courses of action is the mode in which a path is formed across a common : one man crosses the

common in the direction which is suggested either by the purpose he has in view or by mere accident .f

the others follow in the same track !which thay are likely to do after it has once been trodden !apath is

made.

Austin: Custom isa rule of conduct which the governed observe spontaneously and not in pursuance of

law settled bya political superior .

Allen: Custom as a legal ansd social phenomenon grows up by forces inherent in society , forces partly

of reason and necessity and partly of suggestion and limitation .

Halsbury:" custom is aparticular rule which has e#isted either actually or presumptively from time

immemorial and has obtainedthe force of law ina particular locality , although contary to or not

consistent with the general common law of realm .

The Judicial Committee of the Privy Council:"s a rule which in a particular family or in a particular

district has from long usage obtained the force of law

Tanistry case(3 !" #$%& $Custom ! t is %us non scriptum and made by the people in respect of the

place where the custom obtains.&or where the people find any act to be good and beneficial and apt andagreeable to their nature and disposition , they use and practice it from time to time , and it is by

fre'uent iteration and multiplication of this act that the custom is made and being used from time to

time to which memory runneth not to the contrary obtains the force of law.

'riin 'f Custom

Custom is the oldest fom of law making.

" study of ancient law shows that primitive society ,the lives of the people were regulated by the

customs which spontaneously developed according to circumstances and that way were more convenient

than other(hen the same thing was done again and again in a particular way it assumed the form of

custom .Holland: Custom originated in the conscious choice of the two acts .mitation have also played

an important part in growth of customs.


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n )ngland Custom has been almost superseded by legislation and precedent .Common *aw of

)ngland was originally based on the customs of the country .The traveling %udges went place to place to

try cases and based their decisions on the customs prevailing in various parts of the country."s a result ,a law common to whole country came into e#istence and this came to be known as common law .The

common law grew out of the decisions of the traveling %udges but their decisions are based on the

customs of the country

Salmond: The importance of custom diminishes as the legal system grows

)aine: The usages which a particular community is found to have adopted in its infancy and its

primitive seats are more generally those which are on the whole best suited to promote its physical and

moral well being + and if they are retained in their integrity until new social wants have taught new

practices , the upward march of society is almost certain .ut unhappily there is law of developmentwhichever threatens to operate upon unwritten usage .The customs are of course obeyed by multitudes

who are incapable of understanding the true ground of their #pediency , and who are therefore left

inevitably to invent superstitious reasons for their permenance ." process then commences which maybe shortly described by saying that usage which is reasonable generates usage which is unreasonable

."nalogy , the most valuble of instruments in the maturity of jurisprudence , is the most dangeraous of

snares in its infancy .-rohibitions and ordinances confined , for good reasons to a single description ofacts , are made to apply to all acts of the same class , because a man menaced with anger of the gods for

doing one things , feels a natural terror in doing any other thing which is remotely like it.

*aehot : The most intellectual of men are moved 'uite as mush by circumstances which they areused to as by their own will .The active voluntary part of a man is very small , and if it were not

economied by a sleepy kind of habit , its results would be nil .(e could not do everyday out of our own

heads all we have to do .(e should accomplish nothing , for all our energises would be frittered away inminor attempts at petty improvements./ne man , too , would go off from the known tracks in one

directions , and one in another + so that when a crisis came re'uiring massed combination , no two men

would be near enough to act together.t iss the dull traditional habit of mankind that guides most men0s

action , and is the steady frame in which eachnew artist must set the picture that the paints ."nd all thistraditional part of human nature is , e# vi termini , most easily impressed and acted on by that which is

handed down .."ccording to trade , imitation is mere curiosity of psychology , it is one of the primarylaw of nature .1ature perpetuates itself by repetition and the three fundamental forms of repetition are

rhythm or undulation , generation and imitation .

+inoradoff: 2ocial customs themselves obviously did not take their origin from an assembly ortribunal .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 e#press formulation of judicial and e#pert authority .

Ancel : (riters are in the habit of givng their own interpretations of the law , which are sometimes

contrary to the solutions of the courts , but which they nevertheless consider as the only real e#pressionof &rench law ./n many important points3there e#ists a doctrine of the courts and doctrine of law

writers .2o you can find in france a law which is printed in books and taught in universities and which

yet differs much from , even when not contrary to , the law applied by the courts of justice .(riters

nowadays take care to state not only their own opinion , but also the opinion of the jurisprudence , butyet they put forward their solution as the only legal one.

n ancient society law making was not the business of kings.*aw of the country was found in the custom

of the people..The 4ing was an#ious to rule the people according to the popular notion of right andwrong and those were to be found in their customs.*ater the same custom was recognied by the

sovereign by putting his imprimature on it. Thus custom was transformed into law .The custom was


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vague in the beginning but it became definite and concrete with the passage of time .t became rule of

law when recognied by the sovereign .2ometimes adopted in the legislature in its

enactments.2ometimes recognied by the courts in their decisions.%udicial decisions on 5indu *aw arebased on the customs of the 5indus.

.*indin ,orce 'f Custom

6eason (hy custom is given the force of law$.Custom is the embodiment of those principles which have commended themselves to the nationalconscience as principles of truth , justice and public policy .The very fact that any rule has the sanction

of law also .%udges are inclined to accept those rules which in their favour the prestige and authority of

long acceptance. Custom is the e-ternal and visible sin of the national conscience and as such is

accepted by the court of law as an authoritative guide .

Salmond + Custom is to society what law is to the state .)ach is the e#pression and realiation of the

measure of man0s insight and ability , of the principles of right and justice .The law embodies those

principles as they command themselves to the incorporate community in the e#ercise of its sovereignpower.Custom embodies them as acknowledged and approved, not by the power of the state , but by the

public opinion of the society at large.

.."nother reason is the e#istence of an established usage is the basis of a rational e#pectation of its

continuance in the future .%ustice demands that this e#pectation should be fulfilled and not

frustrated .The observance of custommay not be ideally just and reasonable, but it cannot be deniedthat it brins stability and certainity in leal order /n case of California the customswhich developed on goldfields regarding regulation of mining industry

were later given authority of law by the legislature.n case of 1ewealand , the customs of the 7aoris

the original inhabitants of the country , were recognied by the 1ative 6ights "ct of 89; , whichprovided thus: )very title to or interest in land over which the native title has not been e#tinguished

shall be determined according to the ancient custom and usage of the 7aori people so far as the same

can be ascertained .

3/2ometimes a custom observed by lare number of 0eo0le in societyand in course of time the same

comes to have the force of law.eg.ills of )#change$< days grace.

1.Custom rests on the 0o0ular convictionthat it is in the interest of the society.This conviction is

found to be so strong that it is not found to go against it .

#/Paton: Custom is useful to the la2iver and the codifier in . 2ays.t provides the material out of

which the law can be fashioned !it is too great an intellectual effort to create law de

novo.-yschologically , it is easier to secure reverence for a code if it claim to be based on on customsimmemorially observed and themselves true even though historically the claim cannot be

substantiated .There is inevitably a tendency to adopt the ma#im0(hatever has been authority in the pastis safe guide for the future.


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Theories "eardin Transformation 'f Custom 4nto 5a2

Historical Theory

"ccording to this theory the growth of law does not depend upon the arbitary will of any individual ordepend upon any accident .t grows as aresult of the intelligence of the peoplei.e. common

consciousness .t springs from the inner sense of right .*aw has its e#istence in the general will of thepeople

Saviny: *aw like language stands in organic connection with nature or character of the people and

evolves with the people. "gain The foundation of the law has its e#istence ,its reality in the common

consciousness of the people3(e become ac'uainted with it as it manifests itself in e#ternal acts , as itappears in practice , manners and custom .Custom is a sign or badge of positive law and not its

foundation or a ground of origin .

The view of savigny is that custom is athe type of all law and law is valid and just only in so far as itmakes known and objectifies in concrete forms the true legal instinct of the community which it purports

to govern.

Puchta : custom is not only self$sufficient and independent of state imprimatur but is a condition to all

sound legislation .

Arndt : Customary law contains the ground of its validity in itself .t is law by virtue of its own nature ,

as an e#pression of the general consciousness of right , not by the virtue of the sanction , e#press or

tacit , of any legislature.

James Carter : (hat has governed the conduct of men from the beginning of time will continue to

govern it to the end of time .The human nature is not likely to undergo a radical change and therefore

that to which we give the name of law always been , still is , and will for ever continue to be , custom.

Criticism of Historical Theory

Paton : The growth of most of the customs is not the result of any conscious thought but of tentative

practice .

6ray : 1ot only does custom play a small part at the present day as source of non contractual law , butit is doubtful if ever did , doubtful whether , at all stages of legal history , rules laid down by judges have

not generated custom , rather than custom generated legal rules .t has often been assumed , almost as a

matter of course , that legal customs preceded judicial decisions and that the latter have served to givee#pression to the former but of this there appears to be little proof. t seems at least as probable that

custom arose from legal decisions.

Jethro2 *ro2n : That custom is often posterior to judicial decision is another fact about which no

difference of opinion is possible .=nder the pretence of declaring custom , judges fre'uently give rise to

it .

Allen : "ll customs cannot be attributed to the common consciousness of the people .n many cases

customs have arisen on account of the convenience of the rulling class.

Sir Henry )aine: Custom is aconception posterior to that of Themistesor judgements .> Themistes$

awards dictated to the kings by the greek goddess of justice?


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The vie2 of historical school is not balanced.Customs have not always arisen out of convenience orneeds of people.though some rules of law which are based on the common conviction of people ,

majority of them are so complicated and technical that common conviction mighthave never thought of

them .The historical jurist did not pay proper attention to the fact that state has the power of abrogating acustom .They underestimated the creative roles of the judges and legislators which are so important in

modern times.

./ Analytical Theory (Austin 7 Holland 7 6ray 7Allen 7 +inoradoff&

Austin

Customare not la2and it is a source of law .Customs are not positive law until it is reconi8ed by thedecisions of the courts.5e maintains that it has only 0ersuasive value.(hile deciding a case , if the

judge finds that no statute governs the facts of the case , he can seek the help of custom but he mayfollow it or not .That depends upon his discretion ." custom becomes la2when it is embodied in act of

leislatureand enforced by the state.t is not that every custom that is binding .Custom which satisfy

the judicial test are valid ." custom is law only because the sovereign allows it to be so ." sovereign canabolish a custom.

9*aw styled customary is not to be considered a distinct kind of law .t is nothing but judiciary law

founded upon anterior custom /

" customary law may take the 'uality of a legal rule in two ways : t may be adopted by a sovereign orsubordinate legislature and turned into law in the direct mode or it may be taken as a ground of a judicial

decision , which afterwards obtains as precedent and in this case it is converted into law after judicial

fashion .n which ever of these ways it becomes a legal rule , the law into which it is turned emanatesfrom the sovereign .

Holland

Customs are not law when they arisebut are largely ado0ted into la2 by state reconition /)nglish

courts re'uire not only the e-istence of a custombe proved but also that it is reasonable. Thelegislature can also abrogate the custom whether partially or wholly .

inding authority has thus been conceded to custom , provided it fulfills certain re'uirements the

nature of which has also long since been settled and provided it is not superseded by the law of a higher

authority .(hen therefore a given set of circumstances is brought into the courtand the court decidesupom them by bringing them within the operation of a custom , the court appeals to that custom as it

might to any other pre !e#istent law .t does not -roprio 7otu then for the irst time make that custom a

law + it merely decides as a fact that there e#ist a legal custom about which there might up to thatmoment have been some 'uestion , as there might about the interpretation of an "ct /f -arliament .

6ray

The true view , as submit , is that the law is what the judges declare + that ststute , precedents , the

opinions of the learned e#perts , customs and morality are the source of law + that at the back of

everything lies the opinions of the rulling spirits of the community who have the power to close any ofthe sources + but that so long as they do not interfere , theb judges in establishing law have recourse to

these sources .Custom is one of them , but to make it not only one source but the sole source of law itself

, re'uires a theory which is as little to be trusted as that of "ustin.


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Allen

Custom grows by conduct and it is therefore a mistake to measure its valididty solely by the element of

e#press sanction accorded by the courts of law or by other determinate authority .The characteristic

feature of the great majority of customs is that they are essentialy non$litigous in origin .They arise fromany conflict of right adjusted by a supreme arbiter , not from any claim ofMeumagainst Teum, but

from the practices prompted by the convenience of the society and of the individual , so far as they arepromoted by any conscious purpose at all .The starting point of all custom is convention rather thanconflict , just as the starting point of all society is cooperation rather than dissension .

+inradoff+ t is not conflicts that initiate rules of legal observance , but the practices of everday

directed by the give and take considerations of reasonable intercourse and social cooperation .1eithersuccession nor property ,nor contract , started from direct legislation or from direct household on the

death of its manager + property began with occupation + possession id reducible tode factodetentions +

origins of contract goes to the customs of barter .

The vie2 of vinradoff: 7ost of the branches of law did not start from legislation or from any other

source .They started from customs .This applies to law of sucession , possession and contract ..Customstarted in one form or the other in primitive society .2uccessionn started from the necessary arrangement

of the household on the dath of the manager or the head of the family .-roperty began from occupation ,

and possession from de facto detention and contract from custom of barter .These customs do not have

the same form and substance which they had in the beginning .They are no longer customs and havebecome a part of the law .%udges , legislators , jurists and other agencies have transformed customs into

law but those have been moulded by judges , legislators and jurists in course of time .

The analytical theory contains truth 2hich is 0artial and not 2hole /This a00roach is defective due

to many reasons /

The bulk of customs is non !litigous and hence it does not come before the courts .The society

regulate its conduct in accordance with those customs . n most cases , customs are recognied not with the assumption that that recognition gives them the

sanctity of law but with the assumption that they are law and have to be treated as such .Though courtplays a creative role in rationaliing and shaping the customs , they draw their raw material from

customs. 5ence the view that custom is not law until it receives the recognition by the sovereign in not

fully correct.

The correct position les in a synthesis of the two views and by adopting a sociological point of vooew.Custom lie in the foundation of all legal systems.They come into e#istence with the e#istence of society

.Custom is to society what law is to the state .)ach is the e#pression and realiation of the principles of

right and justice.sometimes we can trace some reason , need , or convenience behind custom but that isnot so in every case

t is also not correct that customs are always of local origin and they arise out of the conviction of the

people.sometimes foreign customs such as the customs of the rulling class and sometimes internationalcustoms , such as the commercial customs are adopted and observed .(hen society develops judicial

organs e#ercises some control over them (ith the development of society many other forces e#ercise

their influence on customs .eg. jurist , law giver, coders etc.These influences can be traced in any legal

system.*ike magistrates in 6oman *aw , )'uity %udges in )nglish law , )nglish writers from bracton toblackstone , smritikaras and privy council 5indu *aw which interpreted and moulded the customs .n

developed legal system courts always e#ercise some control over customs .Their function is essentially

that of scrutiny which needs to find out how far an alleged custom is rule of conduct or is observed andhow far it satisfies the test laid down for the customs .f it is satisfactory then the court is @Aeclaratory

rather than constitutive0


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K4;DS ', C


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>H? 6eneral custom applies to the whole country .t constitutes one of the sources of the law of the

land . &rom ancient times till 89thcentury view was held common law was considered to be the same as

the general custom of the realm .To 'uote The common law of the realm is the common custom of the

realm . t can be admitted that it is incorrect to regard common law as the embodiment of the general

custom of the land.1o doubt common law is partly based on the customsof the )ngland as the travelingjudges adopted some of the local customs in their decisions, but they also used their own discretion intaking help from natural law , canon law and the principles of roman civil law .

There is no unanimity of opinion whether the general custom is immemorial or not ."ccording

to one decision , arecent trade usage treating debentures payable to bearer cannot be recognied as it is

against the common law .n another case , it has been held that an instrument which is transferable bydelivery under a trade usage , though recently developed , is a negotiable instrument. f we insist that a

general custom must be immemorial , the result is that once such a custom is recognied by a court of

law , it cannot be changed or abrogated by a new custom and thus the growth of customary law ischecked .

+ie2 of salmond: Feneral custom must be immemorial .t is true that trade customs of acomparatively recent growth are occasionally recognied by the courts, but those are e#ceptions only

.The general rule is that a general custom cannot have the force of law unless and until it is also

immemorial.

Par=er: (hen a general custom is adopted as a precedent , it is accepted as a form of conventional

law . t is adopted because common law provides that an agreement should be enforced according to its

terms." general custom , once recognied cannot be set aside by, a later general custom ." new generaltrade custom cannot derogate from an earlier custom but can develop or add to it .

Keeton: " general custom must satisfy certain conditions if it is to be source of law .t must be

reasonable .t must be generally followed and accepted as binding . t must have e#isted fromimmemorial times .t must not conflict with the statute law and common law of the country .

Conventional custom

A Conventional custom

s one whose authority is conditional on its acceptance and incorporation in the agreement

between the parties bound by it ." Conventional custom is a established practice which is legally

binding because it has been e#pressly or impliedly incorporated in a contract between the parties

concerned.(hen H parties enters agreement all terms are not put in black and white ,certain impliedterms are omitted and e#press terms are merely framework or skeleton .contracts complete when implied

terms are considered .The presumed intention of the parties to the contract can be gathered from 8.thecustomary law and H. other reasonable things be taken to be implied in the contract .The customs of thelocality or trade or profession are taken to be included in the contract .The law presumes that where

persons enter into contract in any matter in respect of which there e#ist some established usage ,they

intend to contract with reference to that usage and to incorporate it as terms of contract in absence of anye#pressed indication of contrary intention. The courts are bound to take notice of these customs .

Hutton +s/>arren ?The court of !-che@uer!5eld that a lease of agricultural land must be read

subject to the custom of locality that tenant was bound to observe a certain course of husbandry and thathe was entitled to an allowance for seed and labour on 'uitting the land >from landlord ?.t is presumed

to have accepted these usages as impliedly incorporated in the lease .


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Par=e : t has long been settled that in commercial transactions e#trinsic evidence of custom and usage

is admissible to anne# incidents to written contracts in matters with respect to which they are silent 3

This has been done upon the principles of presumption that in such transactions the parties did not meanto e#press in writing the whole of the contract by which they intended to be bound , but to contract with

reference to these known usages .0

Certain conditions to be satisfied, before a court is entitled to incorporate the usages into contract

=sage must be so well established as to be notorious >(E/ notoriety its impossible to show that

both parties are contracting in light of usage .? =sage cannot alter the general law of the land whether statutory or common.>usage derives its

force from its incorporation into agreement Ican have no other power to alter law than e#pressagreement .?

=sage must be reasonable >usage will not be enforced if it vary or nullify the e#press terms of the

contract.The parties cannot be understood to have contracted in the light of a convention which

they have e#pressly contradicted .?

5ord *ir=enhead:The learned judge has in effect declared that accustom may be given effect to in

commercial matters which is entirely inconsistent with the plain words of an agreement into whichcommercial men, certainly ac'uainted with so well known a custom , have nevertheless thought proper

to enter.

The bulk of law as to bills of e#change and other negotiable instruments, bills of lading and marine

insurance has originated in this manner>conventional acceptance and incorporation of customary rulesJ

development of body of customary law? as customary law and has becomejus scriptumembodied in"ct .> bills of e#change "ct etc?.*aw so originating normally passess through < sucessive historical

stages

$STSTA6!The e#istence of the usage is a 'uestion of fact to be determined by the jury upon evidencein the particular case in which it arises .

.;DSTA6!! (hen the court takes judicial notice of the custom in 'uestion , so that it no longer

re'uires to be specially pleaded or proved in previous cases and has received the authority of theprecednts established by those earlier cases .The law derived from that custom has now passed out of

earlier stage as customary law and has become case law having its immediate source in precedent ,

though its ulterior and original source was custom .

3"DSTA6!! This stage of historical development which may or may not reached is that in which law

which has thus its original source in conventional custom and its secondary source in precedent is

embodied in a statute and so assumes its ultimate form as enacted law >jus scriptum?.

Custom5eal Custom

$.inding irrespective of the consent of theparties.

./" custom to be valid should have e#istedfrom time immemorial .

3." local custom can freely derogate fromthe general or common law of realm but

not from the statute law .


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1.Custom can override common law in

certain occasion .it cannot detract from the

statute law .

#. *egal custom is one whose legalauthority is absolute .t ac'uires force of

law.

%.t is of two kinds

B. t is not restricted to agreement .it is

e#tended to the entire dept. of humanlife.vi. marriage, religion etc.

.t must be immemorial . )g: kanyadanam

, mangalasutradharana etc,

specific and e#press contract E( parties

1. f in any case common law not e#cluded

by e#press agreement ,it cannot be

e#cluded by usage also .

#.Conventional custom is aone whose

authority is conditional on its acceptanceon incorporation in agreements entered by

the parties.

%/ no such division .

B/ (hen two parties enter into an

agreement it has two parts 8.implied termsH.e#press terms. )very implied terms

cannot be scribed in agreement .which is

followed by parties according to the usage

in the trade and they are bound to follow .

/;oble +s /Kenno2ay ($B&.The

fishing rights of the parties in disput e.Thepetitioner were in possession of pond for

only one year .*ord 7ansfield !

distinguished usage from the legal customand held that right is for only a year and its

purely an usage and not a custom.

5a2 )erchant

t is the accumulated product of the merchants to which sanction has been given by the decisions of the

courts. The law of negotiable instruments , before it was embodied in the statute , was apart of the law

merchant which is conventional custom .ts law creating efficacy is dependent upon the fact that it has

met with acceptance e#tensively among traders and courts , will be prepared to construe their contractsin light of law merchant and import into the contracts implied conditions based upon mercantile

usage ."ny principle which can be introduced by e#press agreement can also be introduced by means

of law merchant which is not permanently fi#ed and stereotyped body of law .The e#igencies of trade

are continually e#panding and the courts of the country are usually not slow in according recognition tothe e#pedients devised by traders for satisfying them.f any part of general law is absolute and admits no

contracts to the contrary , it cannot be impaired by the law merchant which is only convectional custom

and can operate only by means of an implied agreement .This is based on theory that what cannot bedone by the e#press agreement cannot be done indirectly by setting up a mercantile custom .


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"e@uisites of +alid Custom

$/4mmemorial: "custom to be valid to be proved immemorial

*lac= Stone : " Custom in order that it may be legal and binding , must have been 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 goodcustom .

5ittleton : 1o custom is allowed but such custom as hath been used by title of prescription , that is tosay , from time out of mind .The idea of immemorial custom was derived by the law of )ngland from the canon law and by the

canon law from the civil law.

)nglish law !*imit to legal memory and fi#es 889K ".A to constitute the anti'uity of custom. certaincustom is being prevalent from 889K (E/ interruption Iit is an arbitary limit.n ndia )nglish law

regarding legal memory is not applied. "ll that is to be proved is alleged custom is ancient.

Case 5a2 (:$&Subhami +s/ ;a2ab 45" ($E1$& 5ah $#1 (0c&F

Privy Council: t is undertstood that a custom observed in a partocular district derives its force from

the fact that it has , from long usage , obtained in that district the force of law .t must be ancient :but it

is not of the essence of the rule that its anti'uity must in every case be carried back to a period beyondthe memory of man !still less that it is ancient in the )nglish technical sense.t will depend upon the

circumstances of each case what anti'uity must be established before the custom can be accepted .(hat

is necessary to be proved is that the usage has been acted upon in practice for such along period and withsuch invariability as to show that it has , by common consent , been submitted to as the established

governing rule of the particular district .

>H? *aba ;arayan +s Saboosa 7

Sir 6eore "an=in : n ndia while a custom need not be immemorial , the re'uirement of long usage

is essential since it is from this that custom derives its force as governing the parties rights in place of

the general law/

./ "easonable/ Malus usus abolendusest : i/e t must be useful and convenient to the society .To

ascertain the reasonableness of the custom , it must be traced back to its time of origin.Theunreasonableness of the custom must be so great that its enforcement results in greater harm than if

there were no custom at all .

The bye la2s in !nlandare re'uired to satisfy the test of reasonableness .f they aren0t reasonable ,they are set aside by the courts .(here the courts finds a custom in e#istence since its origin directly

conflicts with the legal principle by change in law or aberration are empowered on sufficient reason to

change the law which embodies it .

Prof/Allen: The unreasonableness of the custom must be proved and not its reasonableness.

3/Continuously 'bserved: "custom to be valid which has been continuously observed from timeimmemorial (E/ interruption.f custom not followed continuously and uninterruptedly for a long time ,the presumption is that it never e#isted at all.

1/Peaceable one: The enjoyment of custom must be peaceable one .f not consent is presumed to bewanting in it .

#/Certain and Definite : n one case a customary easement was claimed to cast on the lands f

neighbours the shadow of overhanging trees.t was held to be vague and indefinite on the ground that theshadow of overhanging trees was changing occurrence.


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%/'bservance is Com0ulsory: "n optional observance is ineffective.t 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 .

*lac=Stone: " Custom that all the inhabitants shall be rated towards the maintainence of a bridge ,will be good , but a custom that every man is to contribute thereto at his own pleasure, is idle and absurd

and indeed no custom at all .0

B/6eneral indscheid: The power of customary law is e'ual to that of statutory law. t may , therefore , not

merely supplement but also derogate from the e#isting law ."nd this is true not merely of rules ofcustomary law interse but also of the relations of customary law to statue law .

Allen : "ge cannot wither an "ct of -arliament , and at no time , so far as iam aware , has it ever been

admitted that astatute might become inoperative through obsolescence.

*lac= stone : Customs must be consistent with each other + one custom cannot b set in opposition to

another .&or if both are really customs then both are of e'ual anti'uity , and both established by mutualconsent , which to say of contradictory customs is absurd.Therefore , if oneman prescribes that by

custom he has a right to have windows looking into another0s garden , the other cannot claim a right by

custom to stop up or abstruct those windows : for these contradictory customs cannot be both be good ,nor both stand together .5e ought rather to deny the e#istence of the former custom.

custom-jurisprudence

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