CUSTOM AS A SOURCE OF LAW

By: Jadacia Hall

Azaria Gibson
Trinity Lewis .
Sariah Mascoll
 Common law was molded out of
customs of the people. Custom has
its origin in usage of the certain
actions people do. One of its
BACKGROUND characteristics is that it is not
INFORMATION & consciously formed.
DEFINITION Custom is the first ground and chief
cornerstone of the Laws of England
and are sometimes used in the
decisions of the Court. It is the
oldest form of law making and as
society develops, it gives way to
more conscious forms such as
legislation.
Two categories of Custom:

❖ General Customs - apply to the whole of a particular

community/society.

❖ Local Customs - apply only to a particular section of the

community or a particular group within that community.
 ESSENTIAL
CONDITIONS OF A
VALID CUSTOM

IMMEMORIAL COMPULSORY
NATURE OR
ANTIQUITY

CUSTOM MUST
CONTINUANCE PEACEFUL CONSISTENCY NOT BE
ENJOYMENT CONTRARY TO
ANY STATUTE
LOCAL CUSTOM
MUST APPLY TO
DEFINITE CONVENTIONAL
REASONABLENESS CERTAINTY
LOCALITY USAGE
 This means that the custom must have existed since time
out of mind or since before a long time or from the
commencement of legal memory.
Another explanation is a custom must be ancient or
immemorial so that it may be considered as a valid
binding custom

Immemorial nature or The test of antiquity arose to restrict the growth of

custom and the date was settled at 1189 the first year of
antiquity the reign of Richard I.
In practice it must be proven that the custom existed
since time out of mind OR prior to 1189. Once this is
done it is up to the other party denying the custom to
prove that it did not exist before that date.
An example of this was seen in the case Mercer v Denne
(1905) where the defendant owned part of the beach and
desired to erect houses on that land. Local fisherman
sought to stop him alleging a customary right to dry their
nets on the land. Evidence showed that the custom
existed for seventy or more years thus raising the
presumption or antiquity. The court held the custom valid
even though the fishermen dried their net in a modern
way.
 Custom must have been in existence
continuously, the right to exercise it must not
have been lawfully interrupted.

A custom cannot be lost to disuse, only by act of

parliament or the will of sovereign law makers.

An example of this can be seen in the case Wilde

Continuance v Silver (1913) where the inhabitants alleged that
they were entitled to hold an annual fair or wake
on certain lands and an injunction was granted to
prevent the defendant building on that land
although the fair had not been held in living
memory.

This test does not mean that it must have been

exercised continuously but rather that it must
always have been possible to exercise it lawfully.
 This is an important test which states that the
custom must have been enjoyed peaceably,
openly and as of right. ’As of right’ means not
practiced secretly, by virtue of permission,
enjoyed openly and with knowledge of the
community. It should not be exercised secretly
since the law is public and to have the force of
Peaceful Enjoyment law, the custom must also be public in nature.

In the case of Mills v Corporation Colchester

(1867) the defendant owned an oyster fishery
and licenses were granted to apprentices of a
certain district to fish when fees were paid.
However, although the plaintiff was qualified and
willing to pay the fee, the defendants refused him
a license. It was held that the inhabitants never
had peaceful enjoyment of fishing as of right so
there was no custom which the inhabitants could
enforce.
Reasonableness The customs must not be unreasonable, it must
be in compliance with basic morality, the
prevailing understanding of justice, health and
public policy. If the custom is not reasonable in its
emergence or practice, it cannot be considered a
valid custom.
See Wolstanton case (1941) where a custom
alleging that the Lord of the manor could remove
minerals from under a tenant’s lands without
paying compensation for subsidence and damage
to building was held void.
Certainty A custom must be certain its nature and its scope
of operation. The law does not enforce what is
uncertain and how can anything be said to have
existed since time out of mind if one is not certain
on exactly what it is.

Which briefly means that unless the custom is

unquestionably true, the law will not seek to
enforce it.
Compulsory Compulsory means something you must do
and even if you do not want to, you must
accept it regardless.

A custom established by consent must be

recognized by those affected by it as
compulsory and NOT optional.
Consistency Customs must be consistent with each
other i.e they must not contradict each
other.

If contradictory customs are alleged it is

obvious that both could not be customs
since this would be to say that there is
some inconsistency in the law.
 Statute law is the most modern type of law making and
according to the doctrine of parliamentary sovereignty or
Custom must not be supremacy, Parliament can construct or amend or appeal
any law.
contrary to any statute
Customary practices that are inconsistent with laws
passed by a legislature would be impliedly revoked.

Comparably an alleged custom cannot be opposite to a

common law principle. In the case, Noble v Durell (1789)
there was an alleged local custom that every pound of
butter sold in a particular market should weigh 18
ounces, this was held to be bad since a law enacted by a
legislature was passed in the region of Charles II had
anecdote a pound should be 16 ounces everywhere.
The local custom must The custom must apply to a define locality

As mentioned previously before, local customs

apply to a definite will only apply to the inhabitants of a particular
locality section of the community. By doing this, it
distinguishes local customs from general
customs.
 These confer rights and obligations on
persons by reason of their incorporation in
Conventional Usage contracts by reason of implication. They
are applied in the general application of the
law of contract .
The law infers that the parties expected
that the usage though not expressly stated
would have to be applicable to their
contract. This simply means, if not clearly
stated in simple terms in the contract, the
court will apply the custom to the contract.
In the case of Smith v Wilson (1836) the
tenant of a rabbit warren covenanted to
leave ten thousand rabbits in the warren at
the end of his lease. However, by local
custom or usage of the fur trade this was
derived from an Anglo Saxon word Long
hundred which was 1200, ‘a thousand
rabbits meant twelve hundred’. This usage
was implied into the contract.