Custom

Table of Contents

Nature of Custom

Custom is a rule or a principle that has existed in fact or by presumption from time immemorial. It may have the force of law in a particular area notwithstanding that it might be of variance with common law.

Customs may supplement common law in respect of the matter concerned and be in effect local common law. Customary law is unwritten law.

Customs are local to particular places. They have general application within that district and location. It is inherent in the nature of a custom that it is limited to a place. It cannot apply to the whole jurisdiction as it would constitute the common law.

Customs and Like Concepts

Custom and prescription have similar characteristics. Each has been used for long time and presumptively valid by reason of that long use. Prescription however is personal to owners of particular estates. In contrast, custom applies generally to two persons in the location.

Custom has a different legal meaning to usage. Usage refers to expressed or implied terms in commercial and other contracts in accordance with the particular trade or calling. They need not have existed from time immemorial.

They are not necessarily confined to a particular locality. Usages may not be inconsistent with the common law.

Long Use

In order to be valid, the custom must exist since time immemorial. It must be reasonable. It must have continued without interruption since time immemorial. It must be certain in respect to its nature generally as well as with respect to locality.

Time immemorial is said to be the date exceeding the memory of man. This has been fixed with common law at 1169, the commencement of the reign of Richard I. It must be possible in principle to show the continued existence of the custom from this date. However, this is somewhat of a fiction.

The court will uphold a custom in circumstances which raise a presumption that it has been existence since a remote date. If the evidence is given as to its continuous exercise of the custom / rights as far as living testimony can go, it is presumed to stretch back to time immemorial.

If proof is given that the alleged custom may be shown to have existed at some time in the past, the court may draw an inference that it has existed since time immemorial. This follows the general principle of common law to give effect practices and states of affairs that have been long established and relied on.

Notwithstanding the above, the presumption may be displaced by evidence that it has not or could not have existed since the time immemorial. If its origin can be traced to a more recent source or where it can be shown to have taken place, by license and consent rather than as of right, the presumption may be rebutted. The onus lies on the person who seeks to deny the custom to demonstrate the impossibility of its existence.

Reasonable

A custom must be reasonable. This does not require that it must be reasonable in view of every person. If no good legal reason can be assigned against it, it is reasonable for this purpose. The custom must be reasonable at its inception and based on reasonable cause.

Where the custom is unreasonable in character, it maybe assumed to have resulted by indulgence or unintentionally. If it is contradicts the public order is injurious or prejudicial to the community, benefits few it may be presumed not to have had a reasonable origin. Apparent customs which are held to be unreasonable in their commencement founded on a wrong, force or involuntary consent are deemed unreasonable and ineffective.

A custom is not unreasonable merely because it is contrary to common law. It is not unreasonable because it is prejudicial to the interest of an individual. If it is for the benefit of the community generally persons maybe held to be reasonable if they confer a benefit on large class of the community without being unduly restrictive of the rights of individuals.

Customs have been held to be unreasonable on the ground that they entail unnecessary expense or cast a disproportionate burden. The court looks at the nature of the custom. They may, however, require greater evidence to find it in cases where it impacts heavily on private right.

Certainty

Custom must be sufficiently certain by its terms and extent. The user may be too wide to support the custom alleged. Where use of the right is proved to an extent that it exceeds such rights as there may be under the custom and the excess use is referable to unauthorized use by strangers of the custom, the excessive use will not invalidate the custom on the ground of uncertainty.

The location must be sufficiently certain. It may be a town, manor, township, borough, city, liberty or more. It is insufficient if the area is a mere geographical district even if clearly defined. However, boundaries may vary from time to time. Provided it is clearly defined at a particular moment, this is sufficient.

It must be certain as the persons to whom the custom is to affect. The category must be sufficiently certain by its terms. It must apply to a category of persons who can be delimited clearly from others. The persons affected may be fluctuating as long they are capable of being reasonably defined.

Continuity

Custom must be continuous without interruption since time immemorial. This requires long continuous habitual use. Where it is interrupted and the persons asserting the right have not by legal or other means attempted to prevent the disturbance or interference for many years, a presumption may arise that the custom does not exist at all.

There is a distinction between interruption of the custom and an interruption of the possession and use of the right. Interruption of the exercise of a custom may extinguish the right. However, prolonged non-use of the custom will not negate its existence.

The use need not be continuous without interruption. Non-use will not negate a custom which actually exists. It may however raise presumption that there was ever a custom of the type alleged. This is not the case if non-use is accidental or due to other inevitable circumstances.

Origin

The origin of the custom need not be proved. Proof of the origin of the custom may show that it did not, in fact, exist at the requisite date, that it originated in wrong use , in some unreasonable manner , is attributable to a wrong or can be shown to have originated after 1189.

The enjoyment must be of the custom alleged, must be as of right. Acts must be such as they were done under or by virtue of the custom. They must have been done without violence, secrecy, without leave or consent expressly and privately from time to time.

An alleged customary right given by licence or consent to do something is inconsistent with the claim being as of right. However, payments made in return for an act does not prevent possibility that the act is done as of right and is accordingly a custom.

The nature of the custom may vary over time. It must be a modification or extension rather than the fundamental change. It may change with the nature of a trade or the advent of new methods.

Proof

Some customs need not be proved. The courts take judicial notice of certain customs including customs in certain trades and markets rights. Customs, other than those which are so well known and established that the courts take judicial notice of them, must be proved.

The onus is on the person alleging the custom. The evidence must be consistent with the custom and show that it is enjoyed as alleged. If evidence tends to show a wider custom part only may not be adopted.

Persons may be called to give evidence usually for at least 50 years that the custom was always prevailed. If not contradicted this may often be enough to prove the custom.

Evidence may be called from older persons to prove an interruption. Evidence may be given that it could not have existed from time immemorial. The question of whether or not the evidence supports the customs is one of the fact. The custom must be possible in law and be reasonable.

Right to Use Land

Similar to easements, quasi easements may exist in relation to land and be enjoyed by persons with no title in the land. Quasi easements are similar to easements, but do not have the necessary elements of an easement. They are generally enjoyed by classes of the public which may change from time to time. They could not accordingly be sufficiently certain and would lack the requisite dominant tenement.

Rights by custom may allow persons to enter and use land for the purpose of recreation. There may be rights enjoyed by the inhabitants of a, parish, town, manor or other division. They must be in favour of a particular class of persons. They cannot exist in favour of the public generally, not just persons who happen to be in the district at that time. It must be reasonably exercised by those entitled to it.

There may not be a custom for the public to have access to particular open spaces for recreation. The same may, however, be granted by local Act of parliament or under general legislation.

Where a custom exists permitting playing of games and recreations, the games to which it applies may develop overtime. There may be right for inhabitants to play all lawful games, and pastimes. The games need not have been established in 1189.

Customs to use land or property may be limited to particular times of the year or season. They may be such as to be compatible with planting of crops at certain times of the year.

There may be a right to take water from a well on a particular land or other water source. It is not deemed to be in the nature of a profit because it is not deemed a product of this soil. The water is generally to be used for a particular purpose or manner.

Customary Right of Way

Right of way may exist by custom. This is separate from both public rights of way in highways which arise by dedication and also from private right of ways which are established by prescription and grant. They may only be for the benefit of a particular body or class of persons. They are commonly enjoyed by the inhabitants of a parish.

Quasi-easements may exist in favour of defined but fluctuating bodies of persons. The classic rights of way is a customary church way or mass path. such ways are generally for the benefit of the parishioners. Right to perambulation may exist by custom in favour of inhabitants of a parish or other district.

If a right of way by custom is obstructed, an action may be taken by way nuisance by one or more of the persons entitled to it. Unlike the case of a public right of way, it is not an indictable offence to obstruct a right of way by custom.

A customary right of way is presumptively repairable by the persons in whose favour it exists. There may be a right to enter property and to remove obstructions. There may be rights incidental to the perambulation with a purpose of preserving the notoriety of boundaries It includes the right to enter property which are being perambulated as necessary for purposes connected with perambulations.

Effect of Legislation

Customs may be abolished or extinguished by act of Parliament. If the act of parliament is repugnant to the custom, the custom may be treated as impliedly abrogated. A custom may not be asserted, which is against an Act of Parliament.

Act of parliament may confirm a custom and transfer it into a statutory right. The statutory right being superior, it merges in the custom. If the statute is repealed the custom is revived.

A custom is not destroyed by being embodied in by-laws of an ancient corporation. It is not destroyed by lapse of time during which it is not exercised. A custom which has existed at period long past may be held to still subsist notwithstanding that there is no recent act of enjoyment.