LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 89

a car, he should use it according to what is customary and familiar, even if the detailed manner of its use is not regulated in the contract. To give yet another example, when the father of a bride gives her a wedding gift of, say, a set of furniture, and later claims that it was a temporary loan (ʿāriya), and not a gift (hibba), and there is no evidence to prove the claim, credibility would be given to the prevailing custom. If it is found that the father customarily gave such items as gifts on such occasions, it would be counted as a gift, even if the father claimed otherwise.¹⁹

A general custom of unrestricted application qualifies as a basis of judgment and many jurists have accorded the same value to customs that are confined to a particular area and locality. Technically, however, only the general custom has the strength to take priority over normal rules, or the rulings of analogy (qiyās).²⁰ Custom has thus validated the plucking of ripened fruit that is likely to go to waste, should there be no impediment, and no one is there to collect it. This is contrary to normal rules, which do not permit taking the property of others. Similarly, people tend to weigh and measure goods and commodities differently in different places, and customary practices concerning them will be recognised by the courts in the locality concerned, even if such practices happen to be contrary to normal rules.²¹

According to a parallel, although slightly differently worded, legal maxim, "the usage of people is a proof that must be followed—istiʿmāl al-nāsi ḥujjatun yajibu al-amalu bihā".²² The word istiʿmāl in this maxim is synonymous with ʿādah and this maxim is said to contemplate linguistic usages that concern the meaning of words, whether literal, metaphorical, judicial, etc. Which of these meanings, if any, should prevail in the event of a conflict arising between them is of concern to this maxim. The first of the two maxims under review (i.e., al-ʿādatu muḥakkamatun) is thus concerned with actual practices, whereas the second mainly relates to the linguistic usages of words and their meanings. According to yet another supplementary maxim, "the literal is abandoned in favour of the customary—al-ḥaqīqatu tutraku bi-dalālat al-ʿādah" (The Mejelle, Art. 40). For example, when someone takes an oath that he will never "set foot" in so-and-so's house, but then he only technically sets his foot in that house.