Article 11. Customs which are contrary to law, public order or public policy shall not be countenanced.

Custom Defined:

-      Custom is the juridical rule which results from a constant and continued uniform practice by the members of a social community, with respect to a particular state of facts, and observed with a conviction that it is juridically obligatory. 

(1 Tolentino, Civil Code, p. 38, 1974 ed)

-      A custom is a rule of human action (conduct) established by repeated acts, and uniformly observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and which is therefore generally obligatory and legally binding.

(16 Paras, Civil Code, p. 84, 2008 ed)

In the above definitions, custom is similarly established that it is;

*constant and continued uniform practice

*repeated acts, uniformly observed

by a social community or society and not by an individual only.

In Martinez v Burskirk, 18 Phil. 79; it was said that a cochero who was helping a passenger unload his cargo and left the horse unattended to, was not held to be negligent, even if the horse galloped away, as a result of which the caretela caused injuries to a pedestrian. It was held that, that was the custom of the place.

S.D MARTINEZ vs WILLIAM VAN BUSKIRK

G.R. No. L-5691, December 27, 1910

FACTS:

·         Carmen Ong de Martinez together with her child was riding a carromata in Ermita on 11^th of September 1908 when a delivery wagon attached to a pair of horses used for transporting fodder owned by William Van Buskirk ran at great speed into the carromata occupied by the plaintiff and overturned it. Severely wounding Carmen Ong de Martinez by making a serious cut on her head and injuring the carromata itself.

·         The defendant, William Van Buskirk contends that the cochero who was driving the delivery wagon at the time of the accident was a good and reliable servant. That upon the delivery of the forage, the cochero tied the driving lines to the front end of the delivery wagon and went back inside to unload the forage delivered. While unloading, another vehicle drove by where the driver cracked a whip and made other noises, which frightened the horses attached to the delivery wagon and ran away. The cochero was thrown outside the delivery wagon and was unable to stop the horses which ran into collision with the carromata occupied by Carmen Ong de Martinez.

ISSUE:

          Whether or not the defendant is liable for the negligence of his driver.

RULING:

It was held that the cochero of the defendant was not negligent in leaving the horses in the manner described by the evidence in this case.

The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent. Acts the performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by society for so long a time that they have ripened into custom, cannot be held to be themselves unreasonable or imprudent. 
Indeed the very reason why they have been permitted by society is that they are beneficial rather than prejudicial. 

It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at the time of the accident. 
This is the custom in all cities. It has not been productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has acquiesced for years without objection. 

Custom must not be contrary to law, public order or public policy.

·         While the customs may be applied in lieu of a law, the same cannot be done if they are contrary to law, public order or public policy, for the latter cannot be countenanced.

·         If a custom is repugnant to public policy, public order or law it ought to be restrained.

·         Nor should custom be allowed or permitted which disturbs public order or which tends to incite rebellion against constituted authorities or resistance against public commands duly issued and legally promulgated  

Note:

-      (Lubos v. Mendoza, C.A., 40 O.G 553); An Igorot custom of adoption without legal formalities is contrary to law and cannot be countenanced.

-      (Yamada v. Manila Railroad Co., 33 Phil 8); A custom which may endanger human life cannot be allowed. 

Law distinguished from ‘Custom’

-      While ordinarily a law is written, consciously made, and enacted by Congress, a custom is unwritten, spontaneous, and comes from society. Moreover, a law is superior to a custom as a source of right. While the courts take cognizance of local laws, there can be no judicial notice of customs, even if local. (Art. 12, Civil Code).

Article 12. A custom must be proved as a fact, according to the rules of evidence.

In order that a custom must may be considered as a source of right, the following requisites must be proven:

1.   Plurality of acts

2.   Uniformity of acts

3.   General practice by the great mass of the people of the country or community;

4.   General conviction that it is the proper rule of conduct;

5.   Continued practice for a long period of time; and

6.   Conformity with law, morals and public policy (1 Manresa 82)

Kinds of Customs

(a) A general custom is that of a country; a “custom of the place” is one where an act transpires.

[NOTE: A general custom if in confl ict with the local custom yields to the latter. However, in the absence of proof to the contrary, a general custom is presumed to be also the “custom of the place.’’ (Reyes and Puno, Outline of Civil Law, Vol. 1, p. 8).]

(b) A custom may be propter legem (in accordance with law) or contra legem (against the law). It is unnecessary to apply the first, because it merely repeats the law; it is wrong to apply the second. Customs extra legem are those may constitute sources of supplementary law, in default of specific legislation on the matter. (Reyes and Puno, Outline of Civil Law, Vol. 1, p. 8).

Sources:
*The Civil Code by Paras 2008 Edition
*Family Code of the Philippines by Albano 2017 Edition