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Re: Tea - Law: A one-side contract

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  • Patrick
    I strongly DISAGREE. Even Bouvier s makes a DISTINCTION between a LAWFUL CONTRACT and a VOID CONTRACT. CONTRACT. This term, in its more extensive sense,
    Message 1 of 1 , Feb 24, 2006
      I strongly DISAGREE.
       
      Even Bouvier's makes a DISTINCTION between a LAWFUL CONTRACT and a VOID CONTRACT.
      CONTRACT. This term, in its more extensive sense, includes every description of agreement, or obligation, whereby one party becomes bound to another to pay a sum of money, or to do or omit to do a certain act; or, a contract is an act which contains a perfect obligation. In its more confined sense, it is an agreement between two or more persons, concerning something to be, done, whereby both parties are hound to each other, *or one is bound to the other. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101; Poth. Oblig. pt. i. c. 1, S. 1, 1; Blackstone, (2 Comm. 442,) defines it to be an agreement, upon a sufficient consideration, to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons. 6 Cranch, R. 136.
      ...
      7. - 3d. There must be a thing to be done, which is not forbidden; or a thing to be omitted, the performance of which is not enjoined by law. A fraudulent or immoral contract, or one contrary to public policy is void Chit. Contr. 215, 217, 222: and it is also void if contrary to a statute. Id. 228 to 250; 1 Binn. 118; 4 Dall. 298 4 Yeates, 24, 84; 6 Binn. 321; 4 Serg & Rawle, 159; 4 Dall. 269; 1 Binn. 110 2 Browne's R. 48. As to contracts which are void for want of a compliance with the statutes of frauds, see Frauds, Statute of. (rest omitted)

      VOID, contracts, practice. That which has no force or effect.

      2. Contracts, bequests or legal proceedings may be void; these will be severally considered.

      3. - 1. The invalidity of a contract may arise from many causes. 1. When the parties have no capacity to contract; as in the case of idiots, lunatics, and in some states, under their local regulations, habitual drunkards. Vide Par-ties to contracts, §1; 1 Hen. & Munf 69; 1 South. R. 361; 2 Hayw. R. 394; Newl. on Contr. 19; 1 Fonbl. Eq. 46; 3 Camp. 128; Long on Sales, 14; Highm. on Lunacy, 111, 112 Chit. on Contr. 29, 257.
      ...
      7. - 5. When the contract is fraudulent, it is void, for fraud vitiates everything. 1 Fonbl. Equity, 66, note Newl. on Contr. 352; and article Fraud. As to cases when a condition consists of several parts, and some are lawful and others are not, see article Condition.
      ...
      9. - 3. A writ or process is void when there was not any authority for issuing it, as where the court had no jurisdiction, In such case, the officers acting under it become trespassers, for they are required, notwithstanding it may sometimes be a difficult question of law, to decide whether the court has or has not jurisdiction. 2 Brownl. 124; 10 Co. 69; March's R. 118; 8 T. R. 424; 3 Cranch, R. 330; 4 Mass. R. 234. Vide articles Irregularity; Regular and Irregular Process. Vide, generally, 8 Com. Dig. 644; Bac. Ab. Conditions, K; Bac. Ab. Infancy, &c. I; Bac. Ab. h. t.; Dane's Ab. Index, h. t.; 3 Chit. Pr. 75; Yelv. 42, a, note 1; 1 Rawle, R. 163; Bouv. Inst Index, h. t.

      VOIDABLE. That which has some force or effect, but which, in consequence of some inherent quality, may be legally annulled or avoided.

      2. As a familiar example, may be mentioned the case of a contract, made by an infant with an adult, which maybe avoided or confirmed by the former on his coining of age. Vide Parties, contracts.

      3. Such contracts are generally of binding force until avoided by the party having a right to annul them. Bac. Ab. Infancy, 1 3; Com. Dig. Enfant; Fonbl. Eq. b. 1, c. 2, §4, note b; 3 Burr. 1794 Nels. Ch. R. 5 5; 1 Atk. 3 5 4; Stra. 9 3 7; Perk. §12. VOIR. An old French word, which signifies the same as the modern word vrai, true. Voir dire, to speak truly, to tell the truth.  (rest omitted).

      Your FAILURE to realize this is WHY we keep arguing over whether a PROMISE TO AGREE (as well as many other things) is a CONTRACT.
       
      You don't think it is while I say it is a FRAUDULENT & UNCONSCIONABLE CONTRACT and thus VOIDABLE.
      "Thus, Tilton had a right not to promise to appear in court, and it would be irrational to convict him of a crime because he exercised that right." Port Orchard v. Tilton, 77 Wn.App. 178 (1995)  http://search.mrsc.org/nxt/appellate/077wnapp/077wnapp0178.htm 
      The simple FACT is that OBLIGATIONS arise in one of TWO WAYS, don't they?
      CIVIL CODE 1427.  An obligation is a legal duty, by which a person is bound to do or not to do a certain thing.

      CIVIL CODE 1428.  Section Fourteen Hundred and Twenty-eight.  An obligation arises either from:
         One--The contract of the parties; or,
         Two--The operation of law.  An obligation arising from operation of law may be enforced in the manner provided by law, or by civil action or proceeding.
       
      If the OBLIGATION arose from the OPERATION OF LAW, wouldn't the LEO simply have you ACKNOWLEDGE RECEIPT of the CITATION?
       
      Especially if the ARREST were LAWFUL and the NOTICE TO APPEAR met the LEGAL REQUIREMENTS of a COMPLAINT & SUMMONS and CONSTITUTED VALID service of PROCESS?
      "[6] Courts of law have no inherent power to arrest citizens or place them in jail. The Legislature makes the law on that subject within constitutional limits. The jurisdiction of courts in matters of arrest is controlled by the Constitution in the first instance, and the next by statutory authorization. (In re Mulford, 73 Cal.App.2d 453 [166 P.2d 890].)
      ...
      The citation used in the case at bar lacks the necessary ingredients to comply with the requirement of summons, and therefore the service of it does not confer upon the court jurisdiction of the person.."  Pousson v. Superior Court, 165 Cal.App.2d 750 (1958)
       
      http://login.findlaw.com/scripts/callaw?dest=ca/calapp2d/165/750.html
      Instead don't they try to FORCE you to make a PROMISE TO APPEAR so they can HOLD you ACCOUNTABLE and PENALIZE you if you VIOLATE it?
      PC 853.7.  Any person who willfully violates his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court is guilty of a misdemeanor, regardless of the disposition of the charge upon which he or she was originally arrested.
      Just like the BREACH of a PROVISION of any other CONTRACT?
       
      And I believe the SAME PRINCIPLE applies to a DE JURE arrest and a DE FACTO arrest.
      DE FACTO - A thing done in fact but without strict legal authority; contrast with de jure.
      DE JURE - A thing done according to law; by right; legitimate.
      It appears to me that most WARRANTLESS ARREST are UNLAWFUL.
      "The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights."  HALE v. HENKEL, 201 U.S. 43 (1906)
      Such as a WARRANTLESS ARREST for a NON-PUBLIC OFFENSE/NON-FELONY.
      "In a note to be found in Cooley's Constitutional Limitation, (7th ed.), page 192, it is said that it is not a trespass to arrest a person privileged from arrest, though the officer be aware of the fact. The arrest is only voidable, and the party may waive his privilege. The process of attachment in this case was valid on its face, and was issued by a court of competent jurisdiction; and if it be conceded that Price was privileged from arrest at the time, his exemption from arrest was a personal privilege, and as such could be waived by him. (3 Cyc. 924; Woods v. Davis, 34 N.H. 328; Brower v. Tatro, 115 Mich. 368 [73 N.W. 421]; Smith v. Jones, 76 Me. 138 [49 Am. Rep. 598]; Leal v. Wigram, 12 Johns. (N.Y.) 88; Tarlton v. Fisher, 2 Doug. (Eng.) 671; State v. Polacheck, 101 Wis. 427 [77 N.W. 708]; Prentis v. Commonwealth, 5 Rand. (Va.) 697 [16 Am. Dec. 782].)
      ...
      It is further held that an arrest of one who, at the time of the arrest, may claim immunity therefrom, is not a trespass, and no action for damages will lie by reason of such arrest. (Smith v. Jones, 76 Me. 138 [49 Am. Rep. 598].) The reason that no action will lie for damages, and that such an arrest is not a trespass, rests on the rule that exemption is a personal privilege to be claimed in a legal manner, and if not claimed, it is waived. The arrest not being void where the exemption exists, and only voidable...
       
      ... it appears to be very well settled, whether in civil or criminal cases, the exemption being a personal privilege, unless it is claimed by plea or motion, it is waived, and when one goes to trial upon the plea of not guilty of the offense charged, no question of exemption enters into the cause. Thus, in the early case of Geyer's Lessee v. Erwin, 4 Dallas, 107 [1 L.Ed. 762], the Supreme Court of Pennsylvania in 1790 lays down the rule which has been followed ever since, to wit: "But every privileged person must at the proper time, and in a proper manner, claim the benefits of this privilege. The judges are not bound judicially to notice a right or privilege, nor to grant it without a claim. In the present instance neither the defendant nor his attorney suggested the privilege as an objection to the trial of the cause, and this amounts to a waiver by which the party is forever concluded."  IN RE EMMETT,120 Cal.App. 349 (1932)

      The simple FACT is IF the ARREST was UNLAWFUL there is NO VALID SERVICE of PROCESS and the COURT still has NO JURISIDICTION over the PERSON.

      "Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution-that is, by the law of its creation-to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance."  PENNOYER v. NEFF, 95 U.S. 714 (1877)
      Of course most people NEVER UNDERSTAND the real SITUATION or make these DISTINCTIONS, so they can't VOID the CONTRACT or the ARREST.
       
      And by FAILING to ASSERT the RIGHT, they INADVERTENTLY WAIVE it.
       
      Which would definitedly EXPLAIN why the COURTS hold that in most cases your APPEARANCE is VOLUNTARY and GENERAL (unless you SPECIFY otherwise), wouldn't it?
      General appearance.  An appearance for general purposes, which waives a party’s ability later to dispute the court’s personal jurisdiction.
       
      Voluntary appearance.  An appearance entered by a party’s own will, without the service of process.  Black’s Law Dictionary 7th Ed.
      Patrick in California
       
      "It ain't what ya don't know that hurts ya. What really puts a hurtin' on ya is what ya knows for sure, that just ain't so." -- Uncle Remus
       
      --- In teaparty@yahoogroups.com, "At The Office" <rmitchel@...> wrote:
      >
      > One sided precludes there being a contract.
      >
      > R
       
       
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