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Legal customs in Germany

Customs are social habits, patterns of behaviour, which all societies seem to evolve without express formulation or conscious creation. In a sense custom should be accorded pride of place as one of the principal sources of German law for much, if not most, law was originally based upon it. Moreover custom is not solely important as a source of law, for even today some customary rules are observed in their own right and they command almost as much obedience as rules of law proper; they only differ from rules of law in that their observance is not enforced by the lawyers. Thus, it will be seen that many of the fundamental rules governing the debt collection process by lawyers are 'conventional' (ie customary), rather than legal, rules.
But in modern times most general customs (ie customs universally observed throughout the realm) have either fallen into desuetude or become absorbed in rules of law. For example many of the early rules of the German civil law were general customs which the German courts adopted, and by this very act of adoption made into law. So too, much of the modern mercantile law owes its origin to the general customs of merchants which the courts assimilated during the course of the seventeenth and eighteenth centuries and, indeed, they are still assimilating international practice even for debt recovery lawyers in Germany. So also many of the rules of the law relating to the sale of goods originated as customs, were adopted by the courts, and eventually moulded into a statutory code by the unwilling debtors.
Rules for lawyers
General custom has therefore now ceased to operate as an important source of law. For law, whether enacted or judicially declared, has in most fields superseded custom.
On the other hand customs, prevailing among particular groups of people living in German localities, are sometimes still recognized by the German courts as capable of creating a special 'debt collection law' for the locality in question at variance with the general law of the land. For instance in a well-known case the fishermen of Hamburg were held entitled, by reason of a local custom, to a special right to dry their nets upon a particular beach. But recognition of such variants upon the general law will only be accorded if certain conditions are satisfied. The following are among the more important of those conditions:
- The custom sought to be established must
(1) not be unreasonable
(2) be 'certain', that is to say the right which is claimed must be asserted by or on behalf of a defined group of people
(3) must have existed since 'time immemorial'.
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