Read this article to find out what are the differences between Legal Customs and Conventional Custom?
- A legal custom has binding force on the practice irrespective of their consent.
It must have existed for a long time, i.e. immemorial antiquity.
- It becomes a source of law.
- A legal custom is one whose legal authority is absolute. It acquires force of law.
- In English law, it is the general practice to use the word “custom” for “legal custom” exclusively (custom strict sense).
- Legal custom is of two kinds:
- The legal custom is not restricted to agreements. It is extended to the entire departments of human life, viz. marriage, adoption, religion, endowments, education, etc.
- The statutes relating to bills of exchange, negotiable instruments, bills of landing, marine insurance, etc. are developed from the legal customs.
- The local custom can freely detract from the general or common law of the realm. Of course, it cannot detract from the statute law. The custom can override the common law in certain occasions.
- The legal custom must be immemorial. Example: Kanyadanam, mangalasutradharana, saptapadi, etc. are customs of Hindu marriage existing in India from the time immemorial.
- A usage is also called as “conventional custom”. A conventional custom or usage has binding force on the parties only when it is not expressly excluded by the terms of the agreement of the parties. The parties, if want can exclude the usage by express terms.
- It need not be of immemorial antiquity. It may be a recent one. The term “usage” includes what people are now or recently, in habit of doing in a particular place.
- It is not a source of law directly. A long usage is converted into a custom. Then only the legislature made a law on it. Judges may recognize usage. In England, the people used to handover their gold to the goldsmiths for safe custody. The goldsmiths were issuing receipts for such gold. Gradually, it led to the negotiable instruments. Sub sequent, the negotiable instruments act was enacted in England. Later on, it was enacted in England. Later on, it was enacted for India too.
- A conventional custom or usage is one whose authority is conditional on its acceptance on incorporation in agreements entered by the parties.
- In England law, it is the general practice to use the word “usage” for “conventional custom”.
- There is no such division in usages.
- When two parties enter into an agreement, such agreement; and (ii) the terms implied. Every implied term cannot be scribed in the agreement. Such implied terms are followed by the parties according to the usage in the trade. Law also recognizes such implied terms. The parties are bound to follow such terms. But as a general rule both parties must belong to the trade or business before the implication will be made.
- The conventional custom of merchants is known as the law of merchants.
- Usage can also exclude common law to certain extent that too by specific and express terms of the contract between the parties. Usage cannot completely exclude common law by express agreement.
- Nobel vs. Kennoway (1780): the fishing rights of the parties were in dispute. The petitioners were in possession of pond for only one year. Lord Mansfield distinguished usage from the legal custom, and gave the judgment that fishing right was only for a year and it was purely a usage, but not a custom.