ARGUMENT OF SIR WILLIAM ROBSON. 1667 



to the custom of the trade. Well then, supposing that the contract 

 comes into Court, and the question is : What is the obligation of one 

 of the parties under the contract? There is nothing about it in the 

 document, but he says: "I will prove a custom." And then he 

 proves his custom calls persons who say : " Whenever such a contract 

 is made, without the necessity for any express stipulation whatever, 

 the practice of the parties is to do so and so ; to allow such and such 

 an inspection, within such and such a time ;" so that custom is always 

 proved in the absence of a written document. You do not prove a 

 custom by saying : " Merchants make written contracts " ; because in 

 that case, it is the contracts that speak and not the custom. The 

 custom is proved in order to make good some shortcoming in the 

 written contract, and to prove that such and such a course of conduct 

 is always followed without a written contract, by the mere ordinary 

 course of business of the parties. 



JUDGE GRAY: I do not know, Sir William, whether I quite follow 

 you there, and I should like to ask a question for my information, if 

 you do not object? 



SIR W. ROBSON : I am very happy, Sir, to answer any questions. 



JUDGE GRAY : There is a certain class of so-called servitudes which 

 I believe exists between nations. They call them servitudes, perhaps, 

 for want of a better name. They exist by reason of neighbourhood, 

 propinquity; and certain concessions that might be attributed to 

 comity, that do not rest on contract. 



SIB W. ROBSON: No. 



JUDGE GRAY : But servitudes generally, as I think you said a while 

 ago. must depend for their creation upon a written contract? 



SIR W. ROBSON: Yes. 



JUDGE GRAY: So that there is no practice to which we can be re- 

 ferred in interpreting a contract apart from the contracts themselves? 



SIR W. ROBSON : No. 



JUDGE GRAY: I do not quite understand, then, what is the custom 

 that must be applied to the assertion of the existence of a contract, in 

 order to determine whether that assertion can be maintained. Do you 

 mean that the custom to which we must be referred is in regard to 

 the interpretation of a certain class of contracts ? 



SIR W. ROBSON : Yes ; but, Sir, you have put your finger, if I may 

 say so, on the very point that I am just about to make. I think that 

 I will answer your question if I just pursue the course of my argu- 

 ment, because you are here meeting exactly the very point which I 

 am now approaching. 



JUDGE GRAY : Take your own method, of course. 



SIR W. ROBSON : If you will allow me, I think you will see that I 

 shall answer your question in the regular course of my argument. 

 If not, I shall revert to it. 



