As the first blog post of the year, I figured it would be good to talk about the pre-game of contract making. A lot of people freeze up the first time they are presented with a legal issue. All processes and contracts (either the ones that are aggressively presented to you, or the ones you “sign up” for.) begin with a notice.
Notice is one of the most important aspects of the law. It is key to establishing any contract and its one of the most fundamental aspects of any agreement or settlement. Notice as a concept is very esoteric; but it comes down to a very simple idea. A notice is a non-controversial cause which by its existence compels an effect. Notices come in three flavors, the following are examples:
Actual Notice: I walk through my house in the dark. I bump my foot into a object obscured by shadows. I have been compelled to take notice of a table by actually encountering the fact of the table.
Statutory[efn_note]Statute: An act of the legislature; a particular law enacted and established by the will of the legislative department of government, expressed with the requisite formalities. – Blacks Law 5th[/efn_note]: A notice that is given on or of public policy. It is taken as an evidence of law, not the law itself, a fine difference indeed.[efn_note]See In Re Self v. Rhay, Wn 2d 261.[/efn_note]
Constructive/Implied: A notice created by an argument. The argument establishes an arraignment of the facts to where a presumption is established to be a more or less a true statement, in a word it is axiomatic. The Cookie Jar Conundrum/The Rooster Pot riddle is very illustrative of this notice.
The Cookie Jar Conundrum: A parent is angry at their three children for taking cookies out of the cookie jar without asking permission. The parent asks which one of you took a cookie out of the cookie jar? One child says that I took a cookie out of the cookie jar (admits to only one). The next child says that I did not take a cookie out of the cookie jar (Admits to the fact that there is a cookie jar). The last child says what cookie jar? (If he didn't take notice of the jar in the first place he can be eliminated.) We can establish that the first two children have a relationship to the Jar. The parent can leave the issue as is since one of the kids admitted to grabbing a cookie, however, it would be unfair to leave it without establishing the guilt/innocence of the second child. So the parent looks at the hands and clothes of the child who denied taking the cookies out of the jar: looking around, the parent spots crumbs and chocolate stains on the collar and face of the second child. The parent can safely construct the facts into one notice; that one of the kids is both dishonest and took more than one cookie.
The Rooster-Pot Riddle: A village has a problem with theft, none of the villagers can figure out who is stealing the property of the others. They ask a traveling wise-man for help; he agrees but requests that all of the villagers meet in the town hall and he will solve the issue. After the last villager enters the town hall; the wise-man unveils his plan of inquiry. He tells them all that he has a magic rooster; if any one touches the rooster, or the outside of the cauldron in which he places the rooster; it will cause the rooster croak when it hears a lie. In the interest of fairness, he tells the crowd of villagers that the thief has one chance; before the they all get tested, to confess their crime. No one admits to the crime. He then commands the villagers to close all of the windows to the town hall and lock all the doors; so that the thief, will not escape without notice. He then places the rooster in an old sooty cauldron and has each and every one of the villagers; place their hands on the cauldron and swear an oath stating that they are not a thief. After each of the villagers has made their oath the windows are opened, and the rooster has not croaked. The wise man looking carefully at each of the villagers; declares loudly that he knows who the thief is.[efn_note] He looks at all of their hands, the thief is the only one who does not touch the cauldron. The wise-man gave the thief notice that touching the cauldron(fact) with the rooster inside(fact), and then declaring an oath(fact), would cause the rooster to croak in the presence of a lie. The constructive-notice compelled the thief to not touch the cauldron and thereby no lie could be detected.[/efn_note]
From Blacks Law 1st edition:
“Notice is either (1) statutory, i.e., made so by legislative enactment;[efn_note]Enactment: The method or process by which a bill in the Legislature becomes a law.- Blacks Law 5th[/efn_note] (2) actual, which brings the knowledge of a fact directly home to the party; or (3) constructive or implied, which is no more than evidence of facts which raise such a strong presumption of notice that equity will not allow the presumption to be rebutted. Constructive notice may be subdivided into; (a) where there exists actual notice of matter, to which equity has added constructive notice of facts, which in inquiry after such matter would have elicited; and (b) where there has been a designed abstinence from inquiry for the very purpose of escaping[efn_note] (If you run away from a notice its like screaming that you are guilty of something)[/efn_note] notice. Wharton.[efn_note] J. J. S. Wharton, the law lexicon, forming an epitome of the law of England, and containing full explanations of the technical terms and phrases thereof, both ancient and modern. 1st End. 1 Vol. 8 Vo. London, 1848; 7th End. by J.M. Lely. 1Vol. 8vo. London 1888; 1st American from 1st English End. 1 vol. 8vo. Philadelphia, 1854.[/efn_note]
Notice is actual when it is directly and personally given to the party to be notified; and constructive when the party, by circumstances, is put upon inquiry, and must be presumed to have had notice, or by judgement of law, is held to have had notice.[efn_note] 14 Ga. 145.(Georgia Reports)[/efn_note] Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact has constructive notice of the fact itself in all cases in which by prosecuting such inquiry, he might have learned such fact.[efn_note] Civil Code Cal. Subsection 19 (Civil Code of California)[/efn_note] Actual notice consists in express information of a fact. Constructive notice is notice imputed by the law to a person not having actual notice; and every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself.[efn_note] 1 Dak. T. 399, 400, 46 (Dakota Territory Reports) N.W. Rep. 1134 (North Western Reporter)[/efn_note] In another sense, “notice” means information of an act to be done or required to be done; as of a motion to be made, a trial to be had, a plea or answer to be put in, costs to be taxed, etc. In this sense “notice” means an advice, or written warning, in more or less formal shape, intended to apprise a person of some proceeding in which his interests are involved, or informing him of some fact which it is his right to know and the duty of the notifying party to communicate.
Information: in practice. An accusation exhibited against a person for some criminal offense, without an indictment.[efn_note] 4 Bl. Comm. 308. (Blackstone's Commentaries.)[/efn_note] An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath.[efn_note] 1 Bish. Crim. Proc subsection 141. (Bishop on Criminal Procedure)[/efn_note] The word is also frequently used in the law in its sense of communicated knowledge, and affidavits are frequently made, and pleadings and other documents verified, on “information and belief. In French Law. The act of instrument which contains the depositions of witnesses against the accused.”[efn_note] Poth. Proc. Civil. subsection 2. art. 5. (Pothier, Traite de la Procedure)[/efn_note]
My reason for pointing out the definition of notice is to present a point; which might not be apparent to most. A lot of people will argue the law or argue that there is no contract binding them to such and such law. The state doesn't need for something to be an express law; in order to bind you to a contract. In fact most of the time they utilize a legal technology called a “Quasi-Contract.”[efn_note] Bailey v. West, 249 A.2d 414 (1969) [/efn_note]
The following discussion of quasi-contracts appears in 12 Am. Jur., Contracts, § 6 (1938) at pp. 503 to 504:
“* * * A quasi contract has no reference to the intentions or expressions of the parties. The obligation is imposed despite, and frequently in frustration of, their intention. For a quasi contract neither promise nor privity, real or imagined, is necessary. In quasi contracts the obligation arises, not from consent of the parties, as in the case of contracts, express or implied in fact, but from the law of natural immutable justice and equity. The act, or acts, from which the law implies the contract must, however, be voluntary. Where a case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfil that obligation. The duty, which thus forms the foundation of a quasi-contractual obligation, is frequently based on the doctrine of unjust enrichment. * * * “* * * The law will not imply a promise against the express declaration of the party to be charged, made at the time of the supposed undertaking, unless such party is under legal obligation paramount to his will to perform some duty, and he is not under such legal obligation unless there is a demand in equity and good conscience that he should perform the duty.”
“Therefore, the essential elements of a quasi-contract are a benefit conferred upon defendant by plaintiff, appreciation by defendant of such benefit, and acceptance and retention by defendant of such benefit under such circumstances that it would be inequitable to retain the benefit without payment of the value thereof.”[efn_note] Home Savings Bank v. General Finance Corp., 10 Wis.2d 417, 103 N.W.2d 117, 81 A.L.R.2d 580.“[/efn_note]
Notices can shape the rules of conduct[efn_note] such as the Federal Civil Rules of Procedure[/efn_note], notices can determine how a contract can be accepted/modified/communicated,[efn_note] The notice clause of a contract does more than hold basic information.[/efn_note]and notices can create contracts.[efn_note]To illustrate the point, the following is an interesting “slip and fall case” see Woods v. Winn Dixie Stores, Inc., 621 So. 2d 710[/efn_note]
That's why you need to be very careful about arguing with the police or the court, about what the law is or is not. Do not just pull some random stuff from the internet; by your utterances you are acting as the guarantor/surety for the statement. Start thinking about how you tell someone what the law is or is not, because notice can go along way… even going so far as to make a contract.
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