Types of custom laws
Custom may be classified as follows:
- Legal custom and conventional custom:
A legal custom, according to Salmond, is one whose legal authority is absolute – one which is itself and proprio vigore possesses the force of law. This is custom proper. A conventional custom is one which is not automatically binding but becomes binding only when it is accepted and incorporated in to the terms of a contract. A conventional custom is also called usage. Thus, a legal custom is binding whether one accepts it or not but a conventional custom or usage is binding only when it is accepted by the parties to a contract.
An example of conventional custom is the law merchant or mercantile usage. Most of the agreements of businessmen contain two parts, namely, the terms expressed and the terms implied. The implied terms, generally, are part of the usages that are developed in business transactions. Unless the parties to such contracts specifically exclude them, the mercantile usages are binding.
- The usage must be so well established as to be notorious.
- No period of longevity is necessary.
- The usage cannot alter the general law of the land, whether statutory or common law.
- Usage derives its force from its incorporation into an agreement.
- It can have no more power to alter the law than express agreement.
- The usage will have to be reasonable one.
- Usages may be local or general or international.
- Its sole function is to imply a term when the contract is silent.
- General Custom and Local Custom:
Legal custom is itself of two kinds, being either general custom or local custom. General custom is the custom prevalent throughout the territory of a country, and in England it means the common law. On the other hand, local custom is that which is prevalent in some defined locality only, such as a borough or county in England. For our purpose, custom means local custom only.
- Custom and Prescription:
Custom is a source of law whereas prescription is a source of right to the claimants. To express the same thing in a different way, custom confers rights on the people of a locality generally and prescription confers rights to persons individually.
Historically, custom and prescription were classed as two species of the same thing. They are originally governed by essentially similar rules of law. The requisites of a valid prescription were in essence the same as those of a valid custom. Both must be reasonable, both must be immemorial, both must be consistent with statute law. At present in the case of custom the old rule as to time immemorial still subsists. But now, after a process of gradual differentiation between the two, prescription need not be immemorial it can be established by continuous user for the period prescribed by law. Prescription is also referred to as personal custom. Limitation Act of 1963, under Sections 25-27, deal with acquisition of ownership by possession. Sec.25 deals with acquisition of easements by prescription. Sec.27 deals with extinguishment of right to property.