Conventional Custom

 In jurisprudence, a conventional custom (also known as a usage) is a practice whose authority is derived from its incorporation into an agreement between parties. Unlike a legal custom, which has the force of law independently, a conventional custom only binds the parties because they have expressly or impliedly agreed to it.

Here is an analysis of its nature, essentials, and legal standing:

1. The Nature of Conventional Custom

A conventional custom operates as an implied term in a contract. When parties enter into an agreement in a particular trade or locality, the law assumes they intended to follow the established "usages" of that area or trade, even if those terms aren't written down.

• Basis: It arises from the "meeting of minds" (Consensus ad idem).

• Application: It is mostly seen in commercial law (e.g., banking, shipping, and trade).

• Transformation: If a conventional custom is repeatedly recognized by courts and becomes universally accepted, it may eventually transition into a legal custom.

2. Essentials of a Valid Conventional Custom

For a usage to be legally enforceable as a conventional custom, it must satisfy the following criteria:

• Immemorial Antiquity not Required: Unlike legal customs, a conventional custom does not need to be "immemorial." It only needs to be established enough that parties can be presumed to know it.

• Reasonableness: The custom must be fair and rational. It cannot be arbitrary or opposed to public policy.

• Certainty: The usage must be clearly defined and consistently followed. It cannot be vague.

• Consistency: It must not contradict the express terms of the contract. If the written agreement explicitly rejects a custom, the contract prevails.

• Conformity with Statute: It must not be contrary to the general law of the land or any specific Act of Parliament/Legislature.

3. Comparison: Legal Custom vs. Conventional Custom

Basis	Legal Custom	Conventional Custom (Usage)
Authority	Operates as law independently.	Operates as part of a contract.
Origin	Derived from long usage and state recognition.	Derived from the implied agreement of parties.
Requirement	Must usually be "immemorial" (ancient).	Needs only to be well-established and known.
Scope	Applies to everyone in a territory/class.	Applies only to parties in a specific agreement.

4. How it is Incorporated

The incorporation of conventional custom can happen in two ways:

1. Express Incorporation: When the parties explicitly state in their contract that the "trade usage of the Bombay Stock Exchange" shall apply.

2. Implied Incorporation: When the court assumes that because both parties belong to a specific trade (e.g., the diamond trade), they must have intended to follow the customary rules of that trade.

5. Jurisprudential Significance

According to Sir John Salmond, a conventional custom is a "source of law" because it creates rights and obligations that the state will enforce. However, its immediate source is the consent of the parties, not the command of the sovereign. In modern legal systems, much of the law relating to "Negotiable Instruments" and "Sale of Goods" originally began as conventional customs among merchants (Lex Mercatoria).

Note: for a 4 mark question, only the definition is sufficient