Custom in the Light of the Civil Transactions Law and the Egyptian Civil Code

Custom is among the formal sources of the legal rule in the Egyptian Civil Code. It is the first of the subsidiary sources following legislation. Article 1 of the Egyptian Civil Code provides that "legislative texts govern all matters they cover in their wording or in their tenor. Where no legislative text can be applied, the judge shall decide according to custom; failing that, according to Islamic law; and failing that, according to natural law and the rules of equity." By formal sources is meant those from which the judge draws the rule for the dispute before him, without passing beyond them to others. The judge applies to the dispute before him the provisions of the Civil Code where it has governed the matter expressly or by implication, failing which his judgment is vitiated by a breach of the law. Where there is no legal text, he passes to the next source, which is custom.

Custom may be placed, under the Civil Transactions Law, in the same position the Egyptian Civil Code gives it, as a subsidiary source following legislation applicable. Custom is among the body of general rules set out in the concluding provisions of the Civil Transactions Law, which the law directs the judge to follow where no statutory text can be applied. Among the rules governing custom are the fourth, that "determination by custom is as determination by the text", and the fifth, that "what is known by custom is as though stipulated as a condition". Article 88 of the applicable law of Evidence provides that "proof may be made by custom, or by usage between the litigants, in matters for which there is no particular text or agreement between the parties, or which do not conflict with public order".

Custom

A usage or practice settled in a community, which has consented to be bound by it in its dealings. Usage is authoritative, as the jurists laid down, meaning that usage — general or particular — is made a rule for establishing a legal ruling. It is the reference in a dispute. It is drawn from the saying: what the Muslims deem good is good with God. Usage is given weight where it is constant or predominant. Custom therefore has two elements which must both be present if it is to pass from mere usage to a binding practice.

The elements of custom

One material and the other moral. The moral is the element of usage: that the conduct be a practice settled among people. The material is that it carry the character of obligation. Once custom meets both elements in this way it becomes a legal rule like the legislated rule, equal to it in every respect when the judge comes to apply it to a dispute in the absence of a legislative text governing the matter.

Proving custom

The Procedural Guidance to the applicable law of Evidence, issued by Ministry of Justice decision 921 of 16-02-1444, sets out on whom the burden of proving custom falls. Article 90 provides that "whoever relies on a custom or usage must set out the custom or usage relied on, its connection with the action, its bearing upon it, and what establishes its existence at the time of the event". Whoever alleges a custom must therefore set it out and show its connection with the action, its bearing upon it, and what establishes its existence at the time of the event. This does not mean that the judge cannot apply a customary rule: a customary rule is a legislated rule established under the provisions of the law, a subsidiary source, and no blame attaches to a judge who satisfies himself of its existence and decides accordingly, so long as there is no legislative text governing the matter before him. He is entitled to apply the customary rule and to search it out of his own motion; nor does this prevent the litigants from proving the existence of a customary rule they are entitled to rely on before the court.

Where a litigant wishes to challenge the establishment of a custom or usage, he must "set out the ground of his challenge, or what establishes their contradiction by something stronger", under Article 91 of the Procedural Guidance to the applicable law of Evidence, issued by Ministry of Justice decision 921 of 16-02-1444.

Verifying the existence of a custom

Where a party pleads before the court the existence of a particular custom — "as where the appellant relies on a custom under which rent falls due at the end of the lease, and the judgment decided the action on the footing of a custom under which rent falls due before the date of the lease, without the court verifying the existence of that custom or setting out its source, the court will have breached the law" (cassation, 31 April 1966). Verifying the existence of a custom is, however, a matter left to the trial judge, and may not properly be raised for the first time before the Court of Cassation (cassation, 22 April 1977).

The Egyptian Court of Cassation has also held that, although verifying the existence of a custom is left to the trial judge, he is not relieved of setting out his evidence for its existence and the source from which he drew it, where one of the litigants disputes it.

The rule that "determination by custom is as determination by the text"

This is the fourth of the general rules set out in the concluding provisions of the Civil Transactions Law, and was laid down before that in Article 45 of the Mejelle. Other formulations to the same effect appear in the works of jurisprudence, among them: what is established by custom is as what is established by the text; and what is known by custom is as what is stipulated in words. Thus if a person buys a cow and finds after the purchase that she gives no milk and wishes to return her, his position is looked to: if he is one who buys for slaughter, being a butcher, he may not return her; but if he is one who buys to benefit from her milk, he may.

The rule that "what is known by custom is as though stipulated as a condition"

This is the fifth of the general rules set out in the concluding provisions of the Civil Transactions Law, and was laid down before that in Article 43 of the Mejelle. The Mejelle gave an example of this rule in Article 472, providing that whoever uses another's property without a contract owes a fair rent if the property was set aside for exploitation, and otherwise owes nothing; but if he uses it after the owner has demanded rent, then even if it was not set aside for exploitation he must pay, since by using it in that state he is taken to consent to paying.

Judicial applications and principles have been laid down on these rules in the Kingdom of Saudi Arabia, among them the holding of the Supreme Judicial Council, sitting as its Permanent Panel, that "a penalty clause is given effect where it is within the bounds of what is reasonable by custom" (8/5/1421), (4/320). Principle 59, published in the Principles and Decisions Issued by the Judicial Panels of the Supreme Judicial Council and the Supreme Court. The Supreme Judicial Council also held that "a judge should not suppose that companies are confined to what the jurists, God have mercy on them, mentioned; the matter turns rather on custom, unless there is evidence from the Lawgiver limiting the forms of company. The jurists named only what existed, and the absence of another name — assuming a limitation was intended — does not indicate the invalidity of what arises later, so long as it does not conflict with a text." Principle 174, published in the Principles and Decisions Issued by the Judicial Panels of the Supreme Judicial Council and the Supreme Court, (6/102), (27/1/1418). The Supreme Judicial Council further held that "in judicial consideration regard should be had to the sum claimed; where it is large, people's customs are ordinarily not to pay save under contracts and documents, and this should be verified". Principle 2152, published in the Principles and Decisions Issued by the Judicial Panels of the Supreme Judicial Council and the Supreme Court, (6/579), (28/2/1419).