Home >> Encyclopedia Americana, Volume 8 >> Curzon to Danbury >> Custom


law, contract, common and words

CUSTOM is the legal term applied to un written law established by common consent and uniform practice from time immemorial. Some thing which, by its universality and antiquity, acquired the force and effect of law in the par ticular place or country in respect to the sub ject matter to which it relates; in other words such a usage as by common consent and uni form practice has become the law of the place or of the subject matter to which it has rela tion and which is therefore ruled as law by the court. Three axioms are founded on these definitions: (a) That custom is introduced by the people, under which name we understand the action or assemblage of persons of all de scriptions of that country where they are col lected. (b) That it derives its authority from express or tacit consent of the ruler. (c) That once introduced it has the force of law. Cus toms are general when as such they con stitute a part of the common law and extend to the whole country, while particular customs are those which are confined to a particular district. As a rule, when a contract is made in relation to another, about which there is a well-established custom, it is presumed that such custom forms part of the contract and may be always referred to for the purpose of showing the intention of the parties in all those particulars which are not expressed in the contract. If, however, the meaning of

the contract is certain and beyond doubt, no evidence of usage will be admitted to vary or contradict it. In. order to give validity to a custom it must be certain, reasonable in itself, commencing from time immemorial, and con tinued without interruption. And a custom which is unreasonable, uncertain, and which savors too much of arbitrary power, is void; consequently where a custom is opposed to a well-settled rule of law, and is calculated and intended to violate such law, the custom will not be allowed to have any effect. The true office of a usage or custom with respect con tracts is to interpret the otherwise ndeter minate intention of parties, and to ascertain the nature and extent of their engagements arising not from their express stipulation, but from mere implications and presumptions and acts of a doubtful or equivocal character, or to ascertain the true meaning of words in an in strument where those words havevarious senses; and custom or mage is sometimes ad missible to add new terms not expressed in or covered by the writing. See CUSTOMARY LAW; CONTRACTS.