Custom in United Kingdom

Meaning of Custom

The following is an old definition of Custom [1]: That length of usage which has become law; a usage which has acquired the force of law. Often used synonymously with “usage.” A law established by long usage. A universal custom becomes common law.5 ” The law or rule which is not written, and which men have used for a long time, supporting themselves by it in the things and reasons with respect to which they have exercised it.” “Usage,” strictly speaking, is the evidence of a “custom.” “Custom ” is the making of a law; ” prescription,” the making of a right. Customary. Originating in long usage: as, customary incidents or rights; customary dispatch, see, in this resource, the term; customary estate, freehold, service, tenant;4 customary law: common law. General customs. The universal rule of the whole kingdom, forming the common law, in its stricter and more usual signification. Particular customs. Such as, for the most part, affect only the inhabitants of particular districts; a local or special custom. A general custom is a general law. “General” customs are such as prevail throughout a country and become the law of the country. ” Particular ” customs are such as prevail in some county, city, town, or other place. The chief comer-stone of the laws of England is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among the public records, explained in the reports, and digested for general use by the sages of the law. . . Our practice is to make custom of equal authority with the written law,- when it is not contradicted by that law. ” For, where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly? ” . . It is one of the marks of English liberty that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people. See Law, Common. Particular customs are doubtless the remains of that multitude of local customs out of which the common law was collected, at first by Alfred. For reasons that have been long forgotten, particular counties, cities, towns, and manors were indulged with the privilege of abiding by their own customs. Such, for example, are the customs of London. These particular customs must be proved to exist, and appear to be: legal, that is, be immemorial; continued- the right uninterrupted; peaceable- acquiesced in; reasonable – no sufficient legal reason be assignable against the custom; certain – ascertained or ascertainable; compulsory – not left to one’s option, to use or not to use; and consistent – with each other, if not, then they could never have been assented to. Customs In derogation of the common law are strictly construed. In few States do any purely local customs, such as have just been explained, exist. And such customs are to be carefully distinguished from “usages of trade or business.” These are everywhere allowed their just influence and operation. A usage of trade and business clearly proved to exist, to be ancient, notorious, reasonable, and consistent with law, is permitted to explain the meaning of ambiguous words in written contracts, and to control the mode and extent of their rights where the parties have been silent. But It is never admitted against the expressed agreement of the parties, nor in violation of any statute or well- established rule of law. The current of decisions of late years has been to restrain and limit the allowance and influence of special usages. The courts take judicial notice of general customs. Particular or special customs are to be alleged and proved. Evidence of a temporary custom of which the party to be affected has no knowledge is not admissible against him. Where the object is to interpret a contract it is not necessary to prove all the elements of a custom necessary to make a law. To establish the validity of a custom the usage must have existed so long as to become generally known, and it must be clearly and distinctly proved. The concurrent testimony of a large number of witnesses increases the probability of its being generally known. This is illustrated in the case of a custom which authorizes the captain of a steamboat to insure it for the beneflt of the owner without his express direction.” Evidence of a custom or usage of trade is resorted to in order to ascertain and explain the meaning and intention of the parties to a contract: on the theory that they knew of its existence and contracted with reference to it. It is never received if it is inconsistent with the contract, if it contradicts or varies directly or by necessary implication express stipulations, if it would subvert a settled rule of law, or if there is no contract in reality. See Ringing Up.The uncontradicted testimony of one witness may be sufficient to establish a custom. Customary rights and incidents are such as universally attach to the subject-matter of a contract in the place where the contract is made. These also are impliedly annexed to the terms of a contract unless expressly excluded. See Use, 2, Usage; Usus, Malus usus, etc. Custom of merchants. A system of customs, originating among merchants, and allowed for the benefit of trade as part of the common law. Of such are certain rules relating to bills of exchange (as, that of allowing days of grace), to mercantile contracts, to the sale, purchase, and barter of goods, to freight, insurance, shipping, partnerships. Constitutes the lex mercatoria or law merchant. See Merchant, Law. Customs of London. Particular customs relating chiefly to trade, apprentices, widows, orphans, and local government. Good only by special usage; and tried by the certificate of the mayor and alderman, by the mouth of their recorder.

Resources

Notes and References

1. Concept of Custom provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)