custom. The community's custom is authoritative even over a suprahuman authority.
This is not, however, an issue of popular creativity, either in an area not addressed by law or in terms of established law; rather, it is the right of a community to continue to engage in a halakhically sanctioned practice in the face of new law mandated by another halakhic authority.* This citation neither proves nor disproves Freehof ’s theory.
4.Y. Bava Metzia 7:1(11b)
M. Bava Metzia 7:1:“One who hires workers and tells them to start early and finish late—in a place where it is not the custom to start early and finish late, he may not compel them to do so. In a place where customarily they provide[the workers with] food, he must provide food;[where they] supply a sweet, he must supply a sweet. Everything is according to the custom of the province.”30 The Gemara says:
Rav Hoshaiah said: This means that custom overrides the law. Rav Imi said: In every case but this, the burden of proof rests on the one who seeks to receive something from his fellow. In Tiberias they do not begin work early or leave late; in Bet Maon they do. Tiberians who go up to hire workers from Bet Maon[must follow the custom of] Bet Maon; Bet Maonians who go down to hire workers in Tiberias[must follow the custom of] Tiberias.... What about a place where there is no fixed custom? R. Judah b. Boni, R. Ammi, and Rav Judah say: The court has stipulated that the starting time is determined by the workers and the end time is determined by the employer. What is the reason[i.e., scriptural basis]?“You bring on darkness and it is night,/ when all the beasts of the forests stir. / The lions roar for prey,/ seeking their food from God. / When the sun rises, they come home/ and couch in their dens./ Man then goes out to his work, to his labor until the evening.”(Ps. 104:20-23).31
Once again, the issue at hand is not one of new practices changing accepted usage. Here, existing custom is invoked as the explicitly stated, valid halakhic basis for certain conduct and, when there is no existing custom, one falls back on halakhah and not popular creativity.>