Do Trade Customs Exist?

48 Pages Posted: 6 Dec 1999

Abstract

Customs can be thought of as a kind of pattern or regularity in prior behavior, much as common-law doctrines can be thought of as a pattern or regularity in court decisions. In jurisprudence, however, it would be controversial to claim that patterns in court decisions have an existence of their own, or that those patterns can be identified independently of the goals and beliefs of the person doing the identifying. This paper argues that the existence (and identification) of customs should be subject to exactly the same controversy. In particular, it suggests that the goals, beliefs and other normative premises of the person doing the identifying must inevitably play a role in the interpretation and application of customs. It also reviews the cases interpreting and applying customs to issues of contract and commercial law, suggesting that courts have been doing exactly that.

JEL Classification: K12

Suggested Citation

Craswell, Richard, Do Trade Customs Exist?. THE JURISPRUDENTIAL FOUNDATIONS OF CORPORATE AND COMMERCIAL LAW, (Kraus & Walt, Eds.), Cambridge University Press, 1999. Available at SSRN: https://ssrn.com/abstract=184988 or http://dx.doi.org/10.2139/ssrn.184988

Richard Craswell (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-725-8542 (Phone)
650-723-8230 (Fax)

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