custom and practice?
Discussion
Completely dependant on the situation.
For example it is often customary in Warrington to turn right at a roundabout by approacing in the left lane, possibly even without any use of indicators. This of course is not right.
However, consider a business situation if business A is selling product X to business B for a number of years. On occasion over these years business B have not sold all of the products that has been supplied to them and business A has allowed business B to return up to 20% of the product X for a refund without penalty.
'Custom and Practice' refers to the fact that although the agreement of being able to return some of the goods was never in the written contract, as the process has been agreed and standardised for so long, it may be accepted as 'custom and practice' and therefore becomes an *implied term* of the ongoing agreement to supply product X.
The problem with disputes is that it is difficult to decide what is an implied term and cases are not clear cut and thus would depend on the exact situation.
My understanding is that custom and practice refers to specific contracts as oppose to 'common law' itself.
If you can explain the situation perhaps it will become clear!
For example it is often customary in Warrington to turn right at a roundabout by approacing in the left lane, possibly even without any use of indicators. This of course is not right.
However, consider a business situation if business A is selling product X to business B for a number of years. On occasion over these years business B have not sold all of the products that has been supplied to them and business A has allowed business B to return up to 20% of the product X for a refund without penalty.
'Custom and Practice' refers to the fact that although the agreement of being able to return some of the goods was never in the written contract, as the process has been agreed and standardised for so long, it may be accepted as 'custom and practice' and therefore becomes an *implied term* of the ongoing agreement to supply product X.
The problem with disputes is that it is difficult to decide what is an implied term and cases are not clear cut and thus would depend on the exact situation.
My understanding is that custom and practice refers to specific contracts as oppose to 'common law' itself.
If you can explain the situation perhaps it will become clear!
JustinP1 has it right. It is a concept of contract law. A contract may be written, verbal or implied. It exists when 2 (or more) people agree on something and intend to be bound by that agreement. Where there is a written / signed document that is evidence of the contract and it will be difficult (not impossible, though) to say that the contract is something different (see Edwards v Skyways). Where there is no documentation of the contract, or you believe that something in the contract was not acted upon by both parties by agreement it is possible to ascertain the elements of the actual contractual relationship through evidence of how the parties behaved towards each other. Continued action without change through time becomes "custom and practice".
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