9 Differences between Custom

and Law
by Negi Mohita

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In order to get a deeper insight into the nature of custom and law, we
may here establish a difference between the two:
(i) Law is a make; custom is a growth. Law is explicitly and deliberately made
by the definite power of the state, whereas custom “is a group of procedure
that has gradually emerged, without express enactment, without any
constituted authority to declare it; to apply it and to safeguard it.” Custom
emerges spontaneously without any guide or direction. Law is consciously
created and put into force at the moment of its enactment. In other words, law
is a make, custom is a growth.

(ii) Law needs a special agency for enforcement, custom does not. Law is
applied by a special agency and is sanctioned by organized coercive
authority. Custom does not need any special agency for its application it is
enforced by spontaneous social action. No physical penalty visits a violator of
custom; whereas punishment is meted out to one who violates the law. The
state will not punish a child if it does not touch the feet of his parents in the
morning.

(iii) Law is specific, customs are not. Law is specific, definite and clear. One
can know what the laws of the land are. But as Maine opined, it is only known
by a privileged minority. Customs, on the other hand, are not definite or clear.
They are not codified in any single book so that it becomes difficult to know all
the customs of the land.
(iv) Law is more flexible and adaptable than custom. Law can readily adjust
itself to changing condition: whereas customs cannot be readily changed.
Customs are relatively fixed and permanent. In times of crisis a law can be
immediately enacted to meet the emergency. A sudden change cannot be
brought about in custom.

In India when the Central Government employees had gone on strike thus
paralysing the life of the community, the Government of India at once met the
situation by declaring the strike illegal and enacting a statute banning strikes
in essential services.

The more dynamic the society, the less is reliance placed on traditional
customary rules and the more it is placed on newly enacted regulations.
Roscoe Pound stated, “Law must be stable and yet cannot stand still.” Thus
law is more flexible and adaptable than custom. The former can be
introduced, amended 01 abolished with relative ease, whereas to reform or
adjust the latter is an arduous task.

(v) Customs fade and disappear without formal abolition and without
recognition by any authority, but laws disappear only when abolished by a
recognized authority. Just as formal enactment of law is necessary for it to
come into effect, so its formal abolition is necessary to stop its binding
influence.

(vi) Law is more idealistic than custom. Law tends to be more idealistic than
customs. It is the offspring of mind and directed to aims which are far above
the actual practice of society, custom is the product experience and mainly
concerned with the daily routine of life. Law reforms the customs and
abolishes those which are out of tune with the changing conditions, for
example, the Hindu Code Bill seeks to reform and abolish many of the Hindu
customs regarding marriage, divorce and succession.

(vii) Law generally deals with matters which are vital to the life of society:
whereas the subject matter of custom is more ordinary and familiar. The
customs we observe in addressing persons of authority or taking our meals or
celebrating our festivals do not rise above the commonplace; but the laws
passed for creating a national academy of Sangeet or Sahitya, establishing a
welfare state, abolishing Zamindari system; introducing Three Year Degree
course, making the joining of N.C.C. compulsory and nationalising the banks
deeply affect the social structure.

customs are widely accepted expectations of behavior that are particular to a specific place, time, or
society. Laws, on the other hand, are formal sets of rules that govern the behavior of a group of
people.

Differences Between Customs and Laws

We can outline roughly five distinct differences between customs and laws. First, laws are
purposively established, whereas customs tend to grow naturally over time. In our 4th of July
example from before, the custom of using fireworks to commemorate our nation's independence isn't
something that's required for us to do. It grew over time. However, there are definite legal
requirements as to who can use fireworks and where they can be used. People actually sat down
and established those particular rules.

contract
1) n. an agreement with specific terms between two or more persons or entities in which there is a promis
e to do somethingin return for a valuable benefit known as consideration.

What is a contract?
 A contract is a legally binding or valid agreement between two parties. The law
will consider a contract to be valid if the agreement contains all of the following
elements:

1. offer and acceptance;

2. an intention between the parties to create binding relations;
3. consideration to be paid for the promise made;
4. legal capacity of the parties to act;
5. genuine consent of the parties; and
6. legality of the agreement.

An agreement that lacks one or more of the elements listed above is not a valid
contract.

Elements of a contract
A contract is much more than an agreement between two people. There must
be an offer and acceptance, intention to create a legally binding agreement, a
price paid (not necessarily money), a legal capacity to enter a contract of your
own free will, and proper understanding and consent of what is involved. Any
duress, false statements, undue influence or unconscionable dealings could
make a contract illegal and void.

Offer and acceptance

Intention to create legal relations
Consideration
Legal capacity
Consent
Illegal and void contracts

Contractual obligations
Where two people conclude a contract, they generally enter into a two-way obligation - one
undertakes to provide the other with goods or a service and the other undertakes to pay the
price. Each of the parties to the contract is also bound by an obligation towards the other to
compensate him if the contract is not performed properly or not performed at all.

Non-contractual obligations
 There is a non-contractual obligation where a person who is responsible for loss sustained
by another person is required to compensate the victim, in cases not linked to the
performance of a contract, such as traffic accidents, environmental damage or defamation.

standard form contract (sometimes referred to as a contract of adhesion, a leonine contract,

or a take-it-or-leave-it contract) is a contract between two parties, where the terms and
conditions of the contract are set by one of the parties, and the other party has little or no ability
to negotiate more favorable

Free consent is one of the essential elements of valid contract. Parties to a contract may agree
upon the same thing in the same sense, and along with the same;consent received must
be free from any compulsion or pressure. Lack of free consent would render the contract
voidable at the option of the party not at fault

Free consent is one of the most important essential elements of a valid contract. The term free
consent refers to meeting of free and fresh minds of two parties of an agreement when two parties
take and understand, purpose, subject matter and terms and conditions of the agreement in the
same sense it is free consent. Both of them must take things in the same way. They must not
understand it in different way. An agreement which is made freely it becomes a valid contract due to
presence of free consent of both the parties. In any of the free consent of both there will no free
consent in the agreement.
a. Coercion: - threading.
b. Undue influence: - pressure and misuse of power for unfair advantage.
c. Fraud, deceiving on cheating the other.
d. Misrepresentation: - false statement without an intention to deceive the other.
e. Mistake error

A lawful object or lawful objective is something that is legal. For example, making a contract
to buy a stolen car is not a contract at all as it is illegal to sell a stolen car.May 27, 2013

vices of consent: Error, Fraud, and Duress. Error: An error can be either bilateral or unilateral.
A bilateral error occurs when both parties to a contract are in error.

Consent