Difference between Custom and Usage
Custom in its legal sense means a rule exceptional to the general law, a rule which is in a particular family, class or district has from long usage obtain the force of law. But if a custom is either immoral or forbidden by statute or opposed to public policy cannot be recognized to be valid. Customs basically refers to the long established practices or unwritten rules which have acquired obligatory or binding character. Custom occupies an important place in regulation of human conduct in almost all societies. It is a rule of conduct which is spontaneously observed by the society as a tradition, habit and usage but not in pursuance of law. Where a custom is repeatedly brought to the notice of the court, the court may well hold that custom introduced into the law of land without the necessity of proof in any individual case- Munnalal v Rajkumar.
Custom as a source of law, involves the study of number of aspects example- its importance, its classification, various theories, its recognition, and its essentials.
A custom which is immoral cannot be recognized by the Courts, and the injunction of the sacred texts enjoining strict observance of custom does not apply to such a case.
According to Salmond, “custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility”.
According to Austin, “custom is a rule of conduct which the governed observe spontaneously and not in a pursuance of law set by a political superior”.
Holland: – He defined custom as “a generally observed course of conduct.”
Types of Custom
There are various kinds of custom
• Legal Custom
• Customs with sanction
• Customs without sanction
• Local Customs
• Conventional Customs General Customs
Essentials of a valid custom
• Peaceable enjoyment
• Conformity with statute law
• It should not oppose to morality or public policy
Usage in simple sense means a uniform certain reasonable law practice existing in a particular locality or occupation and binding persons entering into transactions chiefly on the basis of presumed familiarity. So, basically it to a practice which is uniform and it denotes something that people are accustomed to. A uniform certain usage exists in a particular locality and it also binds the people who enters into a transaction upon the same on the basis of the presumed familiarity. Law has developed different forms of usage. Local usage particularly refers to a practice or method of dealing regularly observed in a particular place whereas general usage is a practice that prevails generally throughout the country or is generally followed by a given trade or profession and is not local in its nature or observance.
A family usage differing from the law of the District in which the family is resident can be established by proof that it has been continuous, invariable and also certain- Basantrav v Mantappa . A well-established family custom cannot be defeated by the fact that in one instance it was not observed . But such a family usage unlike a local custom can be discontinued so as to let in the ordinary law , and well –established discontinuance either from accidental cause or by the concurrent will of the family must be held to destroy the family usage – Rajkishen v Ramjoy.
Difference between Custom and Usage
• If a custom is local it is confined to a particular locality but if we talk about the usage it need not to be confined to a particular locality.
• A custom is binding irrespective of the consent of the parties but usages are binding only when they are not expressly excluded by the terms of agreement entered into by the parties.
• A custom to be valid should have been in existence from time immemorial but it is not so in case of a usage which means that unlike custom, a usage, need not to be of immemorial.
• If in any particular case common law cannot be excluded by an express agreement then it cannot be excluded by usage also. But a custom can override the common law.
• On fulfilling the necessary conditions a customs operates as a source of law either for the entire community or for the territorial section in which it operates but a usage only adds a term to a contract.
• A custom arise out of its own force, whereas, usage does not arise out of its own force but is arising out of contract between the parties. In other words a legal custom has its own independent stand and is not a creature of agreement and on the other hand a conventional custom or usage does not exist or arise out of any legal authority independently possessed by it , it arrives out of agreement between the parties.
• A local custom can easily derogate from or common law of the realm, but not from statute law. Usage can do so to the extent to which it is possible to exclude the common law by specific and express contract between the parties
Though, usage and custom are often used as convertible terms but the antiquity, uniformity and notoriety which are required in the case of a custom and not necessary in proving a valid usage.
The term custom and usage is commonly used in Commercial Law, but however “custom” and “usage” can be distinguished. A usage is a repetition of acts but if we talk about custom it is the law or general rule that arises from such repetition. It is noticed that a usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. In case of usage the usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. However, custom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law, however, the two principles are often merged into one by the courts.
Author: Naina Pathak,
Amity University Madhya Pradesh, 3rd year