Contract law. Custom, business custom, custom in the legal regulation of contracts (the most important)

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Contract law. Custom, business custom, custom in the legal regulation of contracts (the most important)

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3. CUSTOM, BUSINESS CUSTOM, USAGE IN LEGAL REGULATION OF CONTRACTS

A custom is a rule of conduct based on the duration and repetition of its application, not regulated by law, developing spontaneously in society, passed down from generation to generation and observed by people out of habit. The authority of custom is ultimately based on the formula: this is what everyone has always done. Customs are used in many areas of human activity, including those covered by law. Legal custom - a kind of custom, regulated by the rule of law, acquiring binding force with the sanction of the state. The subject of such a sanction is not custom as a specific rule of conduct, but the possibility of using it to resolve strictly defined issues in a strictly defined order. In the regulation of contractual relations, customs are important: in the absence of a particular condition, the contract establishes rules that are usually applied in similar cases.

The custom of business turnover is a rule of conduct that has developed and is widely used in any area of business activity, not provided for by law, regardless of whether it is recorded in any document (Article 5 of the Civil Code of the Russian Federation).

For the application of business customs (as opposed to custom), there is no need to refer to them in a specific article or other rule. In the relevant area of business turnover, the rules that meet the criteria given in Art. 5 of the Civil Code of the Russian Federation can always be used to fill gaps in legal acts and contracts. Business practices that are contrary to the provisions of the law or the contract binding on the participants in the relevant relationship shall not apply.

The custom of business turnover is similar to the dispositive norm - it is a fallback option that comes into effect, unless otherwise provided by the contract. The difference is that the dispositive norm itself contains the fallback option that the parties must keep in mind; in the custom of business turnover, it is necessary to find a rule that refers to it.

Business habits are rules of conduct that are common in business activities, common, but not binding on anyone. The peculiarity of a business practice in comparison with custom is expressed in the legal meaning of the will of the parties. The custom exists independently of it; by their agreed will, the parties can only paralyze the operation of the custom. In contrast, business habits acquire life on the condition that this corresponds to the express will of the parties.

Author: Rezepova V.E.

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