Local custom

A local custom is a usage or rule which has gathered the force of law and is binding within a defined area upon the persons affected thereby. Common examples are local rights of way or rights of common. A useful case which exemplifies the operation of law is the following:

Mercer V. Denne (1905)

Defendant owned part of a beach and proposed to erect houses thereon. Local fishermen sought to stop him by claiming that they had a local customary right to dry their nets on the land. Witnesses proved that the custom dated back for some seventy years and reputedly earlier. This raised the presumption of antiquity. Held: that the defendant must not build the houses on the land: the local customary right was upheld.

The onus of proof of a local custom rests on the person claiming that such a custom exists. Judicial recognition will be given and the custom will be enforced if it is:

1. Reasonable.

2. Certain as to the subject-matter of the right, the persons benefited by it and the locality.

3. Local, in the sense that the custom must be applicable to a district known to law, e.g. a parish, manor, or shire.

4. Of immemorial existence, i.e. must have existed from “the commence­ment of legal memory”: arbitrarily fixed at 1189, the first year of the reign of Richard I. Because of the difficulty of proving this, courts presume that the custom existed then unless there is clear evidence of the contrary.

5. Peaceably used. The custom must have been exercised peaceably, openly and as of right (neeper vim, nee dam., necprecario). If a right is exercised by permission, then it cannot be claimed to be exercised “of right” for the right can only be exercised in accordance with the permission.

1. Continuously observed. This does not mean that the right must have been continuously exercised but that it could have been the right to do so being observed without interruption.

2. Compulsory. Once established the custom must be local common law and legally effective because it is right and enforceable.

3. Not contrary to any statute.

4. Consistent, in the sense of being consistent with other customs and not contradictory to them.

Local customs must be distinguished from conventional usages, which are found and observed in particular occupations, trades or business or among professional groups. Following the analogy of the local custom, the courts have laid down certain principles. Every usage must be certain and reasonable and must have acquired notoriety (in the sense that the usage is well known and observed) in the trade or business to which it relates. In contracts, for example, there will usually be express terms, but in addition to these the court may, in construing the contract, imply a term or terms where the parties are deemed to have contracted on that basis. Thus, if a usage is shown to exist in a class of workers entitling members to, say, three months' notice terminating their engagements, this usage or trade custom will apply unless expressly negatived by the contract itself.

Dashwood v. Magniac (1897)

A had devised an estate to В with “a power to cut timber for the repair of the estate”. Evidence was admitted to show what trees were included in the term “timber” in the locality. Held: that “timber” included beech in addition to the usual meaning of oak, ash, and elm.

Grant v. Maddox(1846)

Evidence was admitted in this case of a theatrical usage to show that the word “year” in a theatrical contract means those parts of the year during which the theatre is open.

Smith v. Wilson (1832)

A usage was proved and admitted that in a lease of a rabbit warren the words 'thousand rabbits' meant in that particular locality twelve hundred,

A more recent example is Egerton v. Harding (1974), where the duty to fence was held to be based on custom.

SYSTEMS OF LAW

Warming-up:

1. What do you know about the common-law system and the civil law system?

2. Which legal system operates in your country?