Custom and Prescription under Law of Torts

Custom.

1. Meaning-A rule of conduct is obligatory on those within its scope. A valid custom has the force of law. Custom is to society what law is to the state. A valid custom must be immemorial antiquity, certain and reasonable.

2. Custom is not limited to a restricted period. It is a long practice.

3. Custom operates as a source of law.

4. Custom touches all branches of human life. Viz. marriage, adoption, business, ceremonies, etc.

5. A custom is a genus.

6. Custom may be local or Prevail entire country.

7. After the death of a grand-father, all the grand-sons and grand-daughters are entitled to devolve the proprieties of a grand-father.

8. Coke says: A custom, which is local, is alleged in no person, but laid within some manner or other place.

Prescription.

1. Meaning: the vesting of a right by reason of lapse of time. Negative prescription is the divesting of a right by the same process.

2. Prescription is limited to a limited period, i.e. 20 years, 30 years, etc.

3. Prescription operates as a source of right.

4. Prescription operates to the immovable property, viz. way to land, possession on the property for more than prescribed period by statute; right to fishing, right to water, etc.

5. The law of prescription is a branch of custom i.e. it is a species of custom.

6. Prescription, generally, is limited to a person, group of person, family, etc. it was originally personal custom.

7. A land owner has certain land. All the villagers use a small extent of his land as the way from time immemorial. It is a prescriptive right of way vested in the villagers.

8. Coke says: In the common law, a prescription which is personal, for the most part applied to persons being made in the name of certain person and of his ancestors, or those whose estate he hath; or in bodies politic or corporate and their predecessors.