§ SECTION 11 · BSA 2023 · CHAPTER II — RELEVANCY OF FACTS

Facts relevant when right or custom is in question

When a right or custom is disputed, its biography becomes evidence: the transactions that shaped it — and the particular instances in which it was used, claimed or fought over.

How to read Section 11

Two routes, six verbs, and an even hand.

What it is about

Proving that a right (a fishery, a pathway) or a custom exists — through its recorded and lived history.

Route (a) — transactions

Dealings that created, claimed, modified, recognised, asserted or denied it — or stood inconsistent with it.

Route (b) — instances

Particular occasions of use, claim and recognition — and of dispute and departure. Both sides of the story enter.

The bare Act

The section in its own words — colour-keyed by what each phrase does.

Section 11 · verbatim

Where the question is as to the existence of any right or custom, the following facts are relevant—

(a)any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;

(b)particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.

Illustration

The question is, whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, are relevant facts.

In short: a right or custom is proved the way a person is known — by its biography. Clause (a) opens the paper trail: every dealing that shaped or fought it. Clause (b) opens the diary: every real occasion of use, claim, dispute or departure.

→ The section is deliberately even-handed: the grant that contradicts the right, and the day the neighbours blocked it, walk in beside the deed and the decades of fishing.

Glossary

right

A legally protected entitlement — a fishery, a right of way, an easement.

custom

A practice so long and uniformly followed that it has the force of law in its area or community.

transaction

A dealing — deed, mortgage, grant — that touches the right’s existence.

particular instances

Concrete occasions — the days the right was actually used, or actually resisted.

irreconcilable

Two dealings that cannot both stand — the illustration’s mortgage and later grant.

The picture

The life of a right — its papers and its days.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The ruleThe Illustration

the ruleA right is proved by its biography

In one lineWhen a right or custom is in question, its whole biography enters: every transaction that touched it — and every occasion it was used or fought over.

Where the question is as to the existence of any right or custom,the arenadisputes over whether a right — or a custom — exists at all.

the following facts are relevant—the resulttwo routes open:

(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied,route (a) · transactionssix verbs — every dealing that touched the right’s life: its birth, its claims, its changes.

or which was inconsistent with its existence;even against itdealings that collide with the right count too — both sides of the story get in.

(b) particular instances in which the right or custom was claimed, recognised or exercised,route (b) · instancesreal occasions on which the right was actually used or acknowledged…

or in which its exercise was disputed, asserted or departed from.and the fights…and the occasions it was fought over or departed from.

ExampleA village claims a pathway right across a farm: the old sale deeds that mention the path (transactions), decades of villagers walking it, and the year the farmer’s new gate blocked it (instances — exercise and dispute) — all relevant.

✗ Not thisStray opinions are not this section’s material — it asks for transactions and instances: dealings and occasions. And note its even hand: facts against the right (an inconsistent grant, a blocked use) enter by the same door.

IllustrationThe fishery

In one lineOne fishery, five kinds of proof: a deed, a mortgage, a clashing grant, days of fishing, days of obstruction.

the deed · the mortgagetransactions (a)a deed conferring the fishery on A’s ancestors; A’s father’s mortgage of it — dealings that created and asserted the right.

the later grantinconsistent (a)the father’s subsequent grant, irreconcilable with the mortgage — a dealing against the right, equally relevant.

fishing — and being stoppedinstances (b)the days the father exercised the right — and the days the neighbours stopped him — both occasions count.

ExampleNotice both routes in one picture: the three documents travel by clause (a) — including the one that fights the right — and the two lived scenes travel by clause (b).

Connected provisions

§ 4

IEA 1872, § 13

This provision carries forward section 13 of the repealed Evidence Act.

BSA 2023 — Section 11: Facts relevant when right or custom is in question