pre-liminary, pre-trial strategy. Re: Cases Contracts and Agreements
- View SourceThere are two pages of 'definitions' on 'contracts and
agreements' STRAIGHT OUT OF THE CALIFORNIA CODE in CTC3! Great
stuff! Amazing to find such a clear, concise definition in the
'code' of ANY state... since they routinely ignore them and do
everthing through threat, intimidation, duress and fraud.
Seems part of a good pre-trial, pre-liminary strategy would be to
find the corelating (-insert your state here-) code on the essense
of contracts in your demand for a more definitive statement of the
"nature and cause" of what you are being 'charged' with. After
all, don't you need to be clear on ALL the terms to FULLY
understand them BEFORE you make a decision on whether to 'accept'
them (for value or as a surety)? -Todd
--- Admin@... wrote:
Cases Contracts and Agreements
Von Hoffman v. City of Quincy, 4 Wall. 535, 552.
"Nothing can be more material to the obligation than the means of
enforcement. Without the remedy the contract may, indeed, in the
sense of the law, be said not to exist, and its obligation to fall
within the class of those moral and social duties which depend for
their fulfillment wholly upon the will of the individual. The ideas
of validity and remedy are inseparable, and both are parts of the
obligation, which is guaranteed by the Constitution against
invasion. The obligation of a contract 'is the law which binds the
parties to perform their agreement.'" RED CROSS LINE vs. ATLANTIC
FRUIT COMPANY. 264 U.S. 109, 68 L. Ed. 582, 44 S. Ct. 274 February
18, 1924 Decided
It is essential to the creation of a contract that there be a
mutual or reciprocal assent. Sanford v. Abrams (1888) 24 Fla 181, 2
So 373; Ross v. Savage (1913) 66 Fla 106, 63 So 148; McCay v. Sever
(1929) 98 Fla 710, 124 So 44; United State Rubber Products, Inc. v.
Clark (1941) 145 Fla 631, 200 So 385; Mann v. Thompson (1958, Fla
App D1) 100 So 2d 634.
That the assent be to a certain and definite proposition. Fincher
v. Belk-Sawyer Co. (1961, Fla App D3) 127 So 2d 130; Goff v. Indian
Lake Estates, Inv. (1965, Fla App D2) 178 So 2d 910; Hewitt v.
Price (1969, Fla App D3) 222 So 2d 247.
Without a meeting of the minds of the parties on an essential
element, there can be no enforceable contract. Hettenbaugh v.
Keyes-Ozon-Fincher Ins., Inc. (1962, Fla App D3) 147 So 2d 328;
Goff v. Indian Lake Estates, Inc. (1965, Fla App D2) 178 So 2d 910.
In order to form a contract, the parties must have a distinct
understanding, common to both, and without doubt or difference.
Unless all understand alike, there can be no assent, and therefore
no contract. Webster Lumber Co. v. Lincoln (1927) 94 Fla 1097, 115
So 498; Minsky's Follies of Florida, Inc v. Sennes (1953 206 F2d 1;
O'neill v. Corporate Trustees, Inc. (1967) 376 F2d 818.
Until the terms of the agreement have received the assent of both
parties, the negotiation is open and imposes no obligation on
either. Goff v. Indian Lake Estates, Inc. (1965 Fla App D2) 178 So
2d 910: Carr v. Duval (1840) 39 US 77, 10 L Ed 361.
The assent of each party must be freely given; a contract entered
into as a result of the exercise of duress or undue influence by
the other party, or procured by the fraud of one of the parties,
lacks the essential element of real assent and may be avoided by
the injured party. Wall v. Bureau of Lathing and Plastering (1960,
Fla App D3) 117 So 2d 767.
An actual assent by the parties upon exactly the same matters is
indispensable to the formation of a contract. Bullock v. Hardwick
(1947) 158 Fla 834, 30 So 2d 539: Hettenbaugh v. Keyes- Ozon -
Fincher Ins. , Inc (1962, Fla App D3) 147 So 2d 328: General
Finance Corp. V. Stratton (1963 Fla App D1) 156 So 2d 664.
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