{"id":29476,"date":"2023-11-26T22:44:04","date_gmt":"2023-11-26T22:44:04","guid":{"rendered":"https:\/\/legalblog.ie\/?p=29476"},"modified":"2023-12-12T22:15:47","modified_gmt":"2023-12-12T22:15:47","slug":"usage","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/usage\/","title":{"rendered":"Usage"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/usage\/#Nature_of_Usage\" title=\"Nature of Usage\">Nature of Usage<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/usage\/#Establishing_Usage\" title=\"Establishing Usage\">Establishing Usage<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/usage\/#Criteria_for_Usage\" title=\"Criteria for Usage\">Criteria for Usage<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/usage\/#Effect_of_Usage\" title=\"Effect of Usage\">Effect of Usage<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/usage\/#The_Law_Merchant\" title=\"The Law Merchant\">The Law Merchant<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/usage\/#Admission_of_Usage\" title=\"Admission of Usage\">Admission of Usage<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/usage\/#Usage_Varying_Contract\" title=\"Usage Varying Contract\">Usage Varying Contract<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/usage\/#Becoming_Bound_by_Usage\" title=\"Becoming Bound by Usage\">Becoming Bound by Usage<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/usage\/#Recognition_of_Usage\" title=\"Recognition of Usage\">Recognition of Usage<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Nature_of_Usage\"><\/span>Nature of Usage<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Usage is a course of dealing overtime adopted by persons in a particular business which has acquired notoriety such that where \u00a0persons contract in relation to that area they must be taken as intended to follow during the course of dealing, the usage \u00a0concerned unless they have expressly or impliedly agreed to the contrary.<\/p>\n<p>Unless expressly or impliedly excluded it forms part of the contract.\u00a0 Usages may exist in trades, occupation and branches of commercial life.\u00a0 They may exist in certain places or throughout the State, \u00a0internationally or within local areas.<\/p>\n<p>A usage is different to a custom in that it may extend to the whole jurisdiction.\u00a0 It may be confined to a very limited area or a very limited class of persons.\u00a0 A usage may not be established merely by a handful of persons agreeing that it is desirable.<\/p>\n<p>The usage may fill out the contents of a contract.\u00a0 It will not generally be written but it will be capable of expression.\u00a0 It is effectively incorporated, unless the contrary is shown.<\/p>\n<p>Parties may exclude usage.\u00a0 They may modify it.\u00a0 This may be done expressly or by implication.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Establishing_Usage\"><\/span>Establishing Usage<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Usage is based on practice; it may cease by disuse.\u00a0 However, the fact that party\u2019s contract to the contrary frequently, does not negate the usage.\u00a0 If, however it practice to contract to the contrary, the usage is \u00a0extinguished.\u00a0 A usage may be supplanted by another usage, which gradually supplants it.<\/p>\n<p>A usage must be notorious, reasonable and certain.\u00a0 It must not be contrary to legislation.\u00a0 It need not have existed since time immemorial.<\/p>\n<p>The key questions is the \u00a0notoriety which it \u00a0gains in the particular field. Notoriety must be gained in the relevant market, trade or the area of business so that persons who enter a contract of the nature affected by the usage must be taken to have intended that the usage forms part of the contract.<\/p>\n<p>It need not necessarily be known to all or even the person against whom it is asserted.\u00a0 It must be well known in the place and capable of being readily ascertained by persons who propose to enter a contract.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Criteria_for_Usage\"><\/span>Criteria for Usage<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Usages must be sufficiently certain.\u00a0 They must be uniform and reasonable.\u00a0 A usage which turns on what is thought reasonable by an adjudicative body, is not insufficiently certain.<\/p>\n<p>The usage must be reasonable.\u00a0 This is a question of law.\u00a0 The existence of the usage is a question of fact.\u00a0 A person is not to be taken as having accepted or acquiesced in a unreasonable usage.<\/p>\n<p>A usage which is of general convenience is unlikely to be held unreasonable.\u00a0 If the usage is reasonable for individuals it is likely to be held reasonable for classes of persons dealing in a particular business or trade.<\/p>\n<p>In certain towns and borough in medieval times, usages were provided for by certain bodies have power to restrict and regulate trade. By local government legislation in the late 19<sup>th<\/sup> \u00a0century, it was provided that notwithstanding custom persons could exercise trade or calling. The \u00a0Competition Act has the same effect.<\/p>\n<p>A usage must be legal.\u00a0 It cannot override law including common law or \u00a0statute.\u00a0 Compliance with a usage is not a defence to a criminal charge.\u00a0 A usage may not undermine fundamental interests in property law such as \u00a0allowing an interest inland to be created without writing.<\/p>\n<p>The courts take judicial notice of some usages.\u00a0 Others must be proved.\u00a0 Usages may be peculiar to localities, trades and occupations.\u00a0 They may be general to a trade or limited to a location.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Effect_of_Usage\"><\/span>Effect of Usage<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Usages may affect the land or affect relationships with persons interested in land.\u00a0 Usages may prescribe the duties and obligations of landlord and tenant in certain districts and certain contexts.<\/p>\n<p>They arise most commonly in relation to agricultural tenancies\u00a0 The former Ulster custom granted significant tenant rights prior to their being put on a statutory basis in the Land Acts.<\/p>\n<p>The mercantile usages affect trade.\u00a0 Much of modern commercial law is based on mercantile usages.\u00a0 Mercantile usages still provide support to areas of commercial law.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_Law_Merchant\"><\/span>The Law Merchant<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Usages between persons engaged in mercantile transactions are to be distinguished from the law merchant.\u00a0 The law merchant encompasses many such usages but not all.\u00a0 The law merchant is sometimes considered to be ancient, in the nature of \u00a0\u00a0custom and in other contexts it is described as part of common law.\u00a0Neither description is fully accurate.<\/p>\n<p>The law merchant \u00a0is described as a number of usages which exists between merchants and persons engaged in mercantile transaction throughout the civilized world.\u00a0 The usages are such that they have obtained notoriety in the mercantile world at large such that they are recognised by courts.<\/p>\n<p>Usages \u00a0in the law merchant must be applicable beyond the country.\u00a0 They must be notorious internationally and not just nationally.\u00a0 It must be such as receive judicial notice in the domestic courts.<\/p>\n<p>Not every mercantile usage of which the courts take judicial notice is part of the law merchant.\u00a0 It is comprised of usages of traders in different departments of trade which have been ratified by decisions of courts and law and adopted as settled law in the interest of commercial convenience.<\/p>\n<p>The law merchant is not a fixed body of law forming part of the common law as such. However, the law merchant has become part of common law to the recognition of usages in different areas of trade.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Admission_of_Usage\"><\/span>Admission of Usage<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The admission of a usage may act by way of exception to the parole evidence rule.\u00a0 External evidence of a usage may be admissible to add incidents to a written contracts upon which it is are silent.<\/p>\n<p>The principle \u00a0has been applied in commercial and non-commercial transactions.\u00a0 It is based on the assumption that the parties have contracted with reference to trade usages.\u00a0 It is assumed to that they proceeded on the assumption of the usage.\u00a0 Accordingly, evidence of such usages and their incidents is receivable.<\/p>\n<p>Evidence of the usage has been admitted in the areas of marine insurance, charterparties, bills of lading, sale of goods, stock exchange transactions, brokers, landlord and tenant relationships.<\/p>\n<p>Evidence may be received to explain that which is doubtful.\u00a0 It may not contradict things that are clear.\u00a0 It is not received if it would \u00a0be inconsistent with the written contract.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Usage_Varying_Contract\"><\/span>Usage Varying Contract<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The fact that the usages varies the contract\u00a0 is \u00a0not sufficient to exclude it. It will be rejected only if it is repugnant to and inconsistent with \u00a0the usage.<\/p>\n<p>In order to be repugnant, the custom must be such that if it was expressed in the \u00a0written contract be such as to \u00a0make it insensible inconsistent or unreasonable.<\/p>\n<p>The above rules of interpretation and admission of evidence as to usages apply as between private persons in their dealings and commercial persons engaged in business.<\/p>\n<p>Usages may be allowed to explain terms which in the face of it are unambiguous in order to explain their mercantile context.\u00a0 Mercantile usage \u00a0may explain the language and show its true meaning.\u00a0 The evidence is not excluded simply because the language appears to be unambiguous in itself.<\/p>\n<p>Although parole evidence may not contradict a document, if the parties use terms not intending their ordinary meaning but intending the usages of trade, the usage does not contradict, but explains the contract.\u00a0 This reflects the principle that the contract ought to be interpreted, consistent with and according to the intention of the parties.<\/p>\n<p>Under the above principles evidence of usage is submitted to explain the particular words of the contract in the particular context of the trade. \u00a0In some such contracts apparently, unambiguous terms have a peculiar meaning specific or peculiar to that trade.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Becoming_Bound_by_Usage\"><\/span>Becoming Bound by Usage<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A person who is unaware of usage is not generally bound by it.\u00a0 However, a person may be presumed to have knowledge notwithstanding ignorance of it when he entered the contract.\u00a0 A person may in effect be obliged be duly acquainted with the usages of his trade.<\/p>\n<p>If a usage is sufficiently notorious, knowledge will be imputed to the persons dealing in areas to which it applies. Where a usage has become general and notorious within its sphere, such that all persons can easily discover it and ascertain it, they are presumed to be aware of it and are deemed to submit to it even if they allege that they are not aware of it.<\/p>\n<p>A person who deals in particular markets is bound to enquire as to what usages apply. Where person appoints an agent to do particular acts he is \u00a0taken to have consented to his acting in accordance with usages of the relevant \u00a0place of business.<\/p>\n<p>Where usage applies to a particular profession or field, persons employing an individual in that field deal with him in accordance with the usage and authorized him to act in accordance with the usage.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Recognition_of_Usage\"><\/span>Recognition of Usage<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Courts will take judicial notice of some well-established usages. Other usages must be proved.\u00a0 Proof is given by a verbal evidence by \u00a0persons familiar with the usage by reason of their business, occupation or position.\u00a0 Clear evidence is required.<\/p>\n<p>It must be found that the usage is certain and reasonable and acquiesced in universally in the trade.\u00a0 A significant number of persons of standing in the business where the usage is alleged, must accept it.<\/p>\n<p>The usage may be found unreasonable and void if it is one sided.\u00a0 If it has been built up by a particular lobby or side of \u00a0business but is fundamentally unfair to the interest of the counterparts and infringe \u00a0fundamental principles of right and wrong, it will not be upheld.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-29476\" data-postid=\"29476\" class=\"themify_builder_content themify_builder_content-29476 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Nature of Usage Usage is a course of dealing overtime adopted by persons in a particular business which has acquired notoriety such that where \u00a0persons contract in relation to that area they must be taken as intended to follow during the course of dealing, the usage \u00a0concerned unless they have expressly or impliedly agreed to [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[265],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/29476"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=29476"}],"version-history":[{"count":6,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/29476\/revisions"}],"predecessor-version":[{"id":30149,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/29476\/revisions\/30149"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=29476"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=29476"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=29476"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}