Miles: You know, Lena, one of the most common questions on the TU exam for this chapter is about the "Sources of Law." It’s usually a 10-mark descriptive question, so students really need to be able to break this down. When we say "source," we’re talking about the origin—where the law gets its legitimacy or where the court looks when it has to decide a case.
Lena: It’s like tracing a river back to its spring. And according to the materials, there are a few primary springs we should talk about. The big one, of course, is Legislation.
Miles: Absolutely. Legislation is essentially the law made by the parliament. In Nepal, this is the most popular and important source because it covers almost every area of life. We’re talking about the Company Act 2063, the Contract Act 2056, the Agency Act 2014—these are all pieces of legislation. They are deliberate, written down, and passed by the law-making body of the nation.
Lena: And because they’re written down, they’re usually quite clear, right? But the notes mention that legislation is "coercive." If you violate the Company Act, there are specific punishments or fines. It’s the state saying, "This is the rule, and here is the price for breaking it."
Miles: Exactly. But legislation can’t cover every single possible scenario. That’s where the second major source comes in: Precedent. Now, this is a cool one. Precedents are judicial decisions made by the Supreme Court—the apex court of the country. If the Supreme Court decides a case and propounds a new principle, that principle becomes a law that lower courts must follow in the future.
Lena: I love the example in the notes—the case of Tirtha Raj Kumari Rana v. Ram Shanker Shrestha. The court decided that a Bainapatta—which is like an earnest money agreement—is actually a contract. Because the Supreme Court said so, that’s now the rule for everyone else in Nepal.
Miles: That’s a perfect example to use in an exam. It shows you understand how the "judicial mind" helps create law where the written acts might be silent or unclear. It’s often called "judge-made law." When a similar case comes up, the court looks back at that earlier decision and says, "We already solved this problem, so we’ll use the same principle again."
Lena: It provides consistency. But what about the things we’ve just "always done"? That brings us to Custom. This one feels a bit more ancient, doesn't it?
Miles: It is! Custom is a practice that has been followed by society from time immemorial. For a custom to be considered a source of law in court, it usually has to meet a few criteria. It has to be practiced by a bulk of the people, it can’t contradict existing statutory law, it has to be continuous, and—this is the big one—it has to have been around for a very, very long time.
Lena: Like the Barter system mentioned in the notes. Even before we had formal business laws, these customs regulated how people traded. And even today, if there’s a dispute in a specific trade or community where no formal law exists, the court might look at the "custom of the trade" to decide what’s fair.
Miles: Right, as long as it isn't immoral or against public welfare. Then we have the more "modern" and international sources, like Conventions. These are international treaties or agreements. If Nepal ratifies a convention—like those from the WTO or SAFTA—it becomes binding on the state. It’s treated essentially like domestic legislation.
Lena: That makes sense. In a globalized world, our business law can’t just stop at the border. We have to play by the international rules we’ve agreed to. And then there are the "persuasive" sources, which I find fascinating. Things like the writings of experts or the laws of other countries.
Miles: Exactly. They aren't "binding" in the same way legislation is, but they are incredibly influential. If a famous legal scholar writes a deep analysis of a business law concept, a judge might use that reasoning to help make a decision. Or, since Nepal’s business law was heavily influenced by English Mercantile Law, our courts often look at how things are handled in other jurisdictions to get guidance.
Lena: It’s a real mix of the old and the new, the local and the global. So, for that 10-mark question, a student would want to list these out: Legislation, Precedent, Custom, Convention, and Expert Writings—and maybe mention things like "morality, equity, and good conscience" too.
Miles: Yes, and don't forget the "Determination of International Organizations." Organizations like the WTO set standards that eventually filter down into our own laws. It’s a comprehensive list that shows the law isn't just one thing—it’s a living system fed by many different streams.