Jurisprudence
Custom versus Usage
At a Glance ▪ Salmond divides custom into legal custom, binding in its own right as law (either general or local), and conventional custom or usage, binding only because the parties are taken to have incorporated it into their agreement. ▪ A usage is a fact parties contract on; a custom is law, binding without agreement. An express term excludes a usage; only statute or the Constitution displaces a legal custom. ▪ A usage need not be ancient, but must be certain, reasonable, notorious and consistent with the law and the contract's express terms. ▪ Commercial statutes save usage: the Indian Contract Act, s.1; the Negotiable Instruments Act, s.1 (local usage on instruments in an oriental language, such as hundis); the Sale of Goods Act, ss.16(3) and 62; and formerly Section 92, proviso (5), of the Evidence Act. ▪ Hutton v Warren (1836): usage may annex incidents to a written contract on matters about which it is silent. In personal law the phrase 'custom and usage' (HMA s.3(a)) and the Privy Council's 'usage' in Collector of Madura (1868) mean legal custom, not conventional usage. |
Imagine two scenes. In a village, a family house passes by long custom to the youngest son. Nobody signed anything; the rule binds the eldest son whether he likes it or not, and a court that finds the custom proved will enforce it. That is a legal custom. In a wholesale cloth market, traders have long settled accounts after the festival season without writing it into their bills. When a seller sues mid-season, the court asks whether the practice is so well known that both must be taken to have dealt on it, and if so reads it into the bargain as a silent term; but a buyer who signed a bill saying 'payment within seven days' cannot rely on it. That is usage. The first binds because it is law; the second because it is part of the deal. Notes 25 and 53 state the distinction briefly; this note explains it.
1. Salmond's Distinction
Salmond classified custom by the source of its binding force. A legal custom has absolute authority: it has the force of law of its own right and binds those within its scope regardless of agreement. It is either general, prevailing throughout the realm (in England long absorbed into the common law), or local, prevailing in a locality or, in India, a caste, tribe, community or family. A conventional custom, or usage, has conditional authority: it binds only so far as it has been expressly or impliedly incorporated into a contract. Its force is the force of the agreement, not of the practice.
Classic Definitions ▪ Salmond (Jurisprudence): a legal custom is one whose legal authority is absolute, possessing the force of law in and of itself; a conventional custom is one whose authority is conditional on its acceptance and incorporation in agreements between the parties to be bound by it (paraphrase). ▪ Parke B (Hutton v Warren, Court of Exchequer, 1836): in commercial transactions, and in other contracts made in places or dealings governed by known usages, evidence of custom and usage is admissible to annex incidents to written contracts on matters about which they are silent, on the presumption that the parties contracted with reference to those usages (paraphrase). ▪ Hindu Marriage Act, 1955, s.3(a): 'custom' and 'usage' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, provided it is certain and not unreasonable or opposed to public policy (paraphrase of the proviso). |
2. Usage as Fact, Custom as Law
The deepest difference lies in what a court does with each. A legal custom, once proved, is applied as a rule of law: in this locality or community, the law is so. A usage is a fact bearing on the meaning of an agreement: the court finds that the parties intended to deal according to the known practice of their trade or place. Four consequences follow.
Four consequences of the difference ▪ Consent. A legal custom binds without consent; a usage only through an actual or presumed agreement. ▪ Exclusion. An express term excludes a usage, and a usage inconsistent with the written terms is never read in. A legal custom cannot be contracted out of at will, though it yields to statute. ▪ Scope. A legal custom binds everyone within its locality or community; a usage binds only the parties to contracts made in its trade or place. ▪ Proof. A usage is proved as a fact in each case. A legal custom, once repeatedly proved and recognised, may be noticed without fresh proof. |
In a looser sense 'usage' also means the bare fact of repeated practice before it ripens into a rule: repetition produces a usage, and a usage that meets the requisites and is felt as obligatory becomes a custom.
3. The Requisites Compared
Because a usage borrows its force from the contract, it needs no long pedigree; its conditions ask whether the parties can fairly be presumed to have contracted on it.
Requisite | Legal custom | Usage (conventional custom) |
|---|---|---|
Antiquity | Required: in England from time immemorial (1189); in India long usage, with no fixed date | Not required: a usage may be of recent origin if it is established |
Certainty | Required | Required: its content must be definite |
Reasonableness | Required, applied negatively: valid unless shown unreasonable | Required: an unreasonable usage will not be presumed to be part of a bargain |
Notoriety | Not a separate test; the custom binds those within its scope | Essential: so well known in the trade or place that the parties must be taken to have contracted with reference to it |
Consistency with law | Must not be opposed to statute, morality or public policy | Must not be contrary to statute or illegal |
Consistency with the contract | Not dependent on any contract | Must not contradict the express terms, which always prevail |
Continuity and peaceable enjoyment | Required | Uniform and settled practice required; the property tests are irrelevant |
4. Usage in Indian Commercial Law
Indian commercial statutes deliberately leave room for usage, because trade develops faster than legislation. Their wording is loose, often saying 'custom' where Salmond would say 'usage', so look at the substance, not the label.
Statutory recognition of usage ▪ Indian Contract Act, 1872, Section 1. Nothing in the Act affects any usage or custom of trade, or any incident of any contract, not inconsistent with its provisions. ▪ Negotiable Instruments Act, 1881, Section 1. Nothing in the Act affects any local usage relating to an instrument in an oriental language, though words in the instrument may exclude the usage. This preserves the law of hundis, indigenous bills of exchange such as the darshani hundi (payable at sight) and the shah-jog hundi (payable only to a respectable holder), governed by the usage of the market. ▪ Sale of Goods Act, 1930. By Section 16(3), an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. By Section 62, a right, duty or liability arising by implication of law may be negatived or varied by express agreement, course of dealing, or usage binding both parties. ▪ Indian Evidence Act, 1872, formerly Section 92, proviso (5). Though oral evidence cannot vary a written contract, any usage or custom by which incidents not expressly mentioned are usually annexed to contracts of that description may be proved, if not repugnant to or inconsistent with the express terms. The rule is carried into the Bharatiya Sakshya Adhiniyam, 2023. |
Hutton v Warren Court of Exchequer, 1836 A farm tenant who quit under a written lease claimed, by the custom of the country, a fair allowance for seed and labour put into the arable land, though the lease was silent. The usage was held annexed to the lease: the parties were presumed to have contracted with reference to it. Parke B stated the general rule that usage may annex incidents to written contracts on matters about which they are silent. Proviso (5) is this rule in statutory form: usage may add, never contradict. |
Smith v Wilson Court of King's Bench, 1832 A lessee of a rabbit warren covenanted to leave ten thousand rabbits on it. Evidence of a local usage that a thousand, in dealings in rabbits, meant twelve hundred was admitted to explain the word. Usage may explain the meaning of the parties' words as well as add incidents. |
5. When Usage Becomes Law: The Law Merchant
A usage that becomes universal in a trade may be absorbed into the general law, and then binds as law rather than as a contractual term. The law merchant grew this way: in the eighteenth century Lord Mansfield built the usages of merchants into the English common law of bills of exchange, insurance and sale.
Goodwin v Robarts Court of Exchequer Chamber, 1875 Scrip issued for a foreign government loan was held negotiable because the usage of the money market treated it so, though such instruments were unknown to the old law merchant. The law merchant, the court said, is not fixed and stereotyped but may be expanded by general and established mercantile usage (paraphrase). Usage here passed from fact into law. |
6. 'Custom and Usage' in Personal Law
In Indian personal law the two words are used together and interchangeably, and neither means Salmond's conventional custom. Section 3(a) of the Hindu Marriage Act defines 'custom' and 'usage' in one breath as a rule that has obtained the force of law among Hindus in a local area, tribe, community, group or family; a family custom must also not have been discontinued. Article 13(3)(a) speaks of 'custom or usage having in the territory of India the force of law'. And when the Privy Council said in Collector of Madura v Moottoo Ramalinga Sathupathy (1868) that 'clear proof of usage will outweigh the written text of the law', it meant a legal custom capable of displacing the Smriti texts, not a term implied into a contract.
The lesson for the examination hall: statutes do not always use Salmond's vocabulary. The Contract Act says 'custom of trade' meaning usage; the Hindu Marriage Act says 'usage' meaning legal custom. Always ask where the binding force comes from: the agreement, or the practice as law.
7. The Two Compared
Basis | Legal custom | Usage (conventional custom) |
|---|---|---|
Binding force | Its own: it is a rule of law | Borrowed: from the parties' express or implied agreement |
Nature | Law | A fact bearing on the meaning of a contract |
Kinds | General or local (in India also caste, tribe, community or family) | Usages of a trade, market or place |
Antiquity | Required | Not required |
Notoriety | Not a separate requisite | Essential |
Exclusion | Only by statute or the Constitution | By any express term of the contract |
Binds | All within the locality or community | Only the parties to contracts in that trade or place |
Indian sources | HMA ss.3(a), 29(2); Art. 13(3)(a) | Contract Act s.1; NI Act s.1; Sale of Goods Act ss.16(3), 62; formerly Evidence Act s.92 proviso (5) |
Leading cases | Collector of Madura (1868) | Hutton v Warren (1836); Smith v Wilson (1832); Goodwin v Robarts (1875) |
8. Evaluation
The distinction explains why a recent trade practice can bind merchants while a local custom must prove a long pedigree: the first rests on presumed consent, the second on long communal acceptance. It also explains why usage survives in an age of codes: commerce invents practices faster than legislatures regulate them, and usage lets the law keep pace, as Goodwin v Robarts shows. Its weakness is terminological, since statutes and courts use the words loosely; the remedy is the test of the source of binding force.
Memory Aid ▪ Analogy: the youngest son's house and the cloth market's settlement date. The first binds as law whether anyone agreed or not (legal custom); the second binds only because traders deal on it, and a written term overrides it (usage). ▪ One line: 'Custom is law; usage is a term'. Custom binds by itself; usage binds through the contract. ▪ Usage requisites: 'CRNC, no A', 'Certain, Reasonable, Notorious, Consistent, no Antiquity needed'. ▪ Statute hook: 'Contract 1, NI 1, Sale 16(3) and 62, Evidence 92(5)'. The main savings of usage in commercial law. |
Exam Corner: Likely Questions ▪ Distinguish legal custom from conventional custom (usage). Why is antiquity required of one but not the other? ▪ 'A usage is a fact; a custom is law.' Explain with reference to Salmond and Hutton v Warren. ▪ Discuss the place of usage in Indian commercial law with reference to the Contract Act, the Negotiable Instruments Act and the Sale of Goods Act. ▪ Is 'usage' in Section 3(a) of the Hindu Marriage Act the same as Salmond's conventional custom? Discuss. |
Exam Corner: MCQ Traps ▪ A usage need not be ancient; a legal custom must be. ▪ An express term of the contract excludes a usage; a usage can add to a written contract but never contradict it (formerly s.92, proviso (5), Evidence Act). ▪ Hundis are governed by local usage, saved by Section 1 of the Negotiable Instruments Act. ▪ Under the Sale of Goods Act, usage may annex an implied condition as to quality (s.16(3)) and vary implied terms (s.62). ▪ In Collector of Madura (1868) and HMA s.3(a), 'usage' means legal custom, not conventional usage. |
9. Frequently Asked Questions
Q. What is the difference between custom and usage?
A. In Salmond's sense, a legal custom binds as law in its own right, whether or not the persons bound agreed to it, and must be ancient. A usage, or conventional custom, binds only because the parties are taken to have incorporated it into their agreement; it need not be ancient, but it must be certain, reasonable and notorious, and an express term can exclude it.
Q. Can a trade usage override the written terms of a contract?
A. No. A usage may add an incident on which the contract is silent, or explain the meaning of its words, but it cannot contradict an express term. That was the rule in Hutton v Warren (1836) and in the former Section 92, proviso (5), of the Evidence Act.
Q. Can a usage become law?
A. Yes. A usage that becomes general and settled may be absorbed into the general law, as the usages of merchants became the law merchant. In Goodwin v Robarts (1875) the usage of the money market made a new kind of instrument negotiable.
See also: Note 25 (custom), Note 53 (law versus custom), Note 103 (legislation versus custom), Note 22 (sources of law), Note 35 (obligation).
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