Odger's English Common Law

of such customary incidents. 1
TRADE CUSTOMS. 87
Evidence is, however, admis-
sible to show that by the custom of the trade or market a
special meaning is attached to expressions used in the
contract. 2
Mercantile customs may be divided into three classes :
(1) Customs current among all nations, and therefore
accepted as part of the law of England.
(2) Customs prevailing throughout the length and breadth
of this country ;
;
—
these also have the force of law here and are
in general judicially noticed without proof.
(3) Customs of a particular market and usages of a par-
ticular trade, which are not binding on any one outside that
particular market or trade.
As for the first and second classes mentioned above, we have
already pointed out that such general customs of merchants,
when sanctioned by judicial recognition, became part of the
law of England 3
or as Lord Campbell, C. J., remarked, in
Brandao v. Barnett,* " When a general usage has been
judicially ascertained and established, it becomes part of the
law merchant, which Courts of justice are bound to know and
recognise." In that case the Court held that " the general lien
of bankers is part of the law merchant and is to be judicially
noticed, like the negotiability of bills of exchange, or the days
of grace allowed for their payment." We will only deal
here with the third class, which we will call " trade
customs."
The custom of a particular market or the usage of a par-
ticular trade must be established by evidence ;
the Court will
not take judicial cognisance of it. It is for the jury to find
the existence of the custom as a fact
5
it will then be for
the judge to determine whether it is valid in law. To
be enforceable as a custom the usage must be proved to be
i Fawkes v. Lamb (1862), 31 L. J. Q. B. 98.
2 E.g. to show that " the Baltic " includes the Gulf of Finland (Uhde v.
Warlters (1812), 3 Camp. 16), or that " 1,000 rabbits " means " 1,200 " {Smith
v. WiUon (1832), 3 B. & Ad. 728).
3 See aide, p. 56. ,»,».«* »•
* (1846) 3 C. B. at p. 630 ; approved in London Chartered Bank of Australia
v. White (1879), 1 App. Cas. 413.
6 In the City of Loudon, h wever, it is sufficient if thj Recorder has certified the
existence of the custom ; the Court will then take judicial notice of it. See Crrsbie v.
Hetherington (1842), i II. & Gr. 933.
;