Legal Definitions - communis error

Communis error is a legal principle, primarily recognized in Scots law, that refers to a widespread and long-standing practice which, despite lacking a strict legal basis, is upheld by courts because it has been commonly accepted and followed for an extended period. The underlying idea is that if an error has become so ingrained and universally adopted in practice, overturning it would cause more harm or confusion than maintaining the status quo, effectively giving the common error the force of law. It can also be referred to as "communis error facet jus," meaning "common error makes law."

Here are some examples to illustrate this concept:

• Local Council Administrative Practice:

  Imagine a local council in Scotland that, for over 50 years, has been granting a specific type of planning permission for small garden sheds without requiring a formal application fee. This practice has continued even though the relevant national planning legislation technically mandates a fee for all structures over a certain size. This custom might have started informally, perhaps due to an early misinterpretation of a guideline, but it has continued unchallenged for decades.

  If a new council auditor were to challenge this practice, a Scottish court might invoke communis error. The court could rule that because this practice has been consistently followed for such a long time, is widely known and relied upon by residents, and overturning it would create significant administrative burden and retrospective charges for thousands of homeowners, the common error has effectively become the accepted legal practice in that council's jurisdiction.

• Property Boundary Interpretation:

  Consider a rural area in Scotland where, for generations, property owners have used a specific type of natural marker, like a stream or a line of ancient trees, to delineate their land boundaries. This has occurred even if the original deeds describe the boundaries using slightly different measurements or landmarks. This customary interpretation has been passed down through families and respected by all local landowners and surveyors.

  Should a dispute arise between neighbors over a boundary line, and the deeds offer an ambiguous description, a Scottish court might look to the principle of communis error. If it's demonstrated that the community has consistently and universally recognized the natural markers as the true boundaries for an extended period, the court might uphold this common understanding. This would happen even if it doesn't perfectly align with a literal reading of the oldest legal documents, as the long-standing common practice, though technically an "error" from the original deed's perspective, is given legal weight to avoid disrupting established peace and understanding.

• Industry Standard for Contractual Terms:

  In a particular sector of the Scottish fishing industry, it has been a long-standing custom for contracts between boat owners and fish processors to include a clause stating that payment will be made "within 60 days of landing." This practice persists despite a general commercial lawstatute that specifies payment terms should default to "30 days" unless explicitly agreed otherwise. This 60-day practice became standard decades ago due to the unique cash flow cycles of the industry and has been universally accepted and applied by all parties involved without issue.

  If a new fish processor tried to enforce the 30-day statutory default against a boat owner, a Scottish court might consider the communis error principle. Given the widespread and unchallenged adoption of the 60-day payment term across the entire industry for a significant period, the court could rule that this common practice, though technically a deviation from the general statute, has become the de facto legal standard within that specific industry sector, preventing the disruption that enforcing the statutory default would cause.