Morton and Co v Muir Bros, 1907 SC 1211
Citation: Morton and Co v Muir Bros, 1907 SC 1211
Rule of thumb: Are practices which everyone in a trade-sector does, valid legal terms? Yes, entrenched customs in an industry have the force of law.
Judgment:
The basic facts were that Muir Brothers were using designs in their curtains which had been innovated by Morton and Co. Morton and Co did not register these designs under intellectual property but held that it was a implied custom in the trade that people did not use the designs of others. The Court held that this was an implied condition of trade and that Muir Brothers were in breach of it, ‘The conception of an implied condition is one with which we are familiar in relation to contracts of every description, and if we seek to trace any such implied conditions to their source, it will be found that in almost every instance they are founded either on universal custom or in the nature of the contract itself. If the condition is such that every reasonable man on the one part would desire for his own protection to stipulate for the condition, and that no reasonable man on the other part would refuse to accede to it, then it is not unnatural that the condition should be taken for granted in all contracts of the class without the necessity of giving it formal expression’, Lord McLaren
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