| 释义 |
custom
n. A practice that has been followed in a particular locality in such circumstances that it is to be accepted as part of the law of that locality. In order to be recognized as customary law it must be reasonable in nature and it must have been followed continuously, and as if it were a right, since the beginning of legal memory. Legal memory began in 1189, but proof that a practice has been followed within living memory raises a presumption that it began before that date. Custom is one of the four sources of international law (see customary international law). Its elaboration is a complex process involving (1) the accumulation of state practice, (2) the practices of international organizations, (3) the decisions of international and national courts on disputed questions, and (4) the mediation of jurists. One essential ingredient in transforming mere practice into obligatory customary law is opinio juris. Custom also plays a role in contract law. Terms can be implied in a contract through custom: in Cunliffe-Owen v Teather & Greenwood [1967] 1 WLR 1421 it was stated that the general rule in such cases is that the custom must be “certain, notorious, reasonable, recognized as legally binding and consistent with the express terms.” Custom is normative. The parties follow it because they believe that they should. Custom is a question of fact, it should be accepted by those who do business in the trade, and it should be generally known so that outsiders who make enquiries could be aware of it (Kum v Wah Tat Bank Ltd [1971] 1 Lloyd’s Rep 439). |