Facts relevant when right or custom is in question
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Summary
When a court must decide whether a particular right or customary practice exists, transactions that created, claimed, modified, recognized, denied, or contradicted that right are relevant. Also relevant are specific past instances where the right was exercised, asserted, disputed, or abandoned. These facts help prove whether the right or custom actually exists and how it was applied.
Example
Rohan says he has a customary right to run a tea stall in the village market because his family did it for years. A deed given to his grandfather, a mortgage of the right by his father, a later permission letter, and occasions when neighbours stopped the family from trading are all relevant to show whether the right really exists.
Bare Act
Enacted textWhere the question is as to the existence of any right or custom, the following facts are relevant—
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(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence;
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(b) particular instances in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed, asserted or departed from.
Illustrations
The question is, whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours are relevant facts.
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