Custom as a Source of Law

A practice accepted as customary in a specific area, which can sometimes override common law, but not statute law.

A practice in a contract that adds to the contract's terms, possible if it's to exclude common law by express contract.

A long-standing practice accepted as law, arising independently of contract; it can be community-wide or local.

A business practice requiring less stringent proof of antiquity, uniformity, and notoriety compared to general customs.

A long-standing practice granting a right to or by a person and limited to a particular person.

Law created by legislatures, superior to customs and usage.

Law based on prior court decisions, potentially overridden by customs (with conditions).

Old rules relating to customs that are considered to have existed from time beyond legal record.

A clear, explicit agreement between parties.

Fiction used in prescription cases where the legal right's origin is assumed and time of start is unknown.

A custom's legality depends on whether the negative consequences of denying it are outweighed by the negative effects of accepting it.

A custom that is not fair, just, or appropriate; legally unenforceable.

Courts assess whether a custom aligns with fundamental principles of morality, justice, and local law.

A custom's contemporary practicality does not determine its validity. Focus instead on prevailing moral/lawful principles when assessing fairness.

The court determines if a custom is reasonable, based on established legal precedents and principles

A right claimed through established usage or practice of a custom.

Courts will not compel adherence to unreasonable customs.

A practice must not be based on force, stealth, or individual choice to be considered customary law.

If a custom is not followed for a long time, it is assumed never to have existed as a custom.

A custom must involve legal rights and obligations, not just voluntary practices.

A valid custom must not violate public policy, or fairness and honesty; it cannot be against the public good.

Custom cannot be extended by drawing comparisons (analogies).

A custom cannot be used to violate fundamental rights.

There are theories about how customs become law, like one theory that sees custom as existing on its own as law.

A custom is presumed to have existed for an extremely long time, often beyond living memory, if instances of it have occurred within the last 20 years.

A custom in existence for 40 years might be considered enforceable, but the validity and enforceability are ultimately determined by the court and not the duration alone.

Indian customs are not judged using the strict English rule, which requires a custom to be so ancient that no one can remember it being otherwise. The Indian approach is more flexible and the length and nature of the custom is a factor, but not the sole criteria.

Modern customs are not generally enforced to prevent the proliferation of new customs and to avoid the court becoming swamped with custom-related cases.

A custom must not be unreasonable; it must be consistent with public good, convenience, and utility, and not unjust.

If a party challenges a custom, the burden is on them to prove its unreasonableness, not the custom's reasonableness.

Assessing whether a custom is reasonable involves considering its historical context and impact. Unreasonableness must be substantial, doing more harm than good if enforced.

Customs, even longstanding ones, are not automatically authoritative; they must conform to justice and public benefit.

Custom is derived from societal consciousness, representing a sense of right and the overall will of the people.

Custom is not law itself, but a source that becomes law only after sovereign approval, through legislation and judicial recognition.

Non-obligatory customs; practices not legally binding.

Custom that has been recognized by the legal system and has the force of law.

Custom recognized as binding by parties but not legally enforced by the state.

Widely accepted practices, applicable across the entire jurisdiction of a legal system.

Practices particular to a specific region, potentially within a larger legal jurisdiction.

A point of origin from which law is derived, which may include but is not limited to legislative enactments, judicial decisions, and customary practices.

A custom that becomes binding only if explicitly or implicitly agreed upon by the involved parties in a contract.

Contractual customs are enforceable only when included (expressly or implied) in the contract itself, not due to any independent legal source.

Terms in a contract that are not explicitly written but understood to be part of the agreement based on the context and custom.

A custom must meet specific criteria to be considered valid as law, such as being immemorial, not contradictory to statute law, reasonable, and morally and publicly acceptable.

Customs in early societies are often the primary, or even sole, source of law.

Customs help formalize and organize societal rules, eventually evolving into codified legal systems.

Customary law has significantly influenced legal systems over time, from Roman law to modern legal thought.