Time: Thu Oct 31 07:12:12 1996
To: 
From: Paul Andrew Mitchell [address in tool bar]
Subject: LLAW: autarchic: Traveling is a right [5/7]
Cc: 
Bcc: liberty lists

<snip>
>--------- Begin forwarded message ----------
>From: autarchic
>To: libertylaw@www.ultimate.org
>Subject: Traveling is a right [5/7]
>Date: Wed, 30 Oct 1996 10:21:09 EST
>Message-ID: <19961030.141740.4327.18.autarchic@juno.com>
>
> >>> Part 5 of 7...
>
>making the driver's license, the results of a vision test conducted by
>the driver's license examiner.
>54.       The applicant places his signature upon this form that is
>then copied by some photographic process. Other material is added
>including a photograph, signature of the Director of the Department of
>Law Enforcement and the driver's license is made of this composite.
>55.       Thus the license itself cannot be a contract because it is a
>contrived document. The form from which the driver's license is made
>cannot be a contract because, again, none of the elements of a
>contract are present. So if none of the documents executed by the
>driver when obtaining a license is a contract, then no contract can
>exist between the driver and the State as a result of obtaining a
>driver's license.
>56.       But the idea that the driver's license is a contract with
>the State is pervasive. It is a belief that is strongly held even by
>people in high places. So let us examine the driver's license as if it
>were a contract and see if it can withstand scrutiny. Not every offer
>made by one party and accepted by the other creates a valid contract.
>The outward form of a contract, either oral or written may exist, and
>yet the circumstances may be such that no contract was in reality
>created. Some circumstances that will cause an apparently valid
>contract to be void are:
>57.               MISTAKE EITHER MUTUAL OR UNILATERAL
>     57.1      Mistake either mutual or unilateral.
>     57.2      Fraud.
>     57.3      Duress.
>     57.4      Alteration.
>58.       This Sovereign obtained a driver's license upon the
>representation by the State that traveling upon the streets or
>highways of the United States of America was a privilege. This
>Sovereign accepted this representation as true and did obtain a
>driver's license.
>
>     58.1      It has been shown, still, that traveling is a
>     "RIGHT" and not a privilege. Thus, a mutual mistake has been
>     made, and the "contract" is void.
>     See:
>          Deibel v. Kreiss, 50 N.E. 2d 1000 (1943).
>
>59.       But the General Assembly of the State who passed the
>statutes contained in the North Carolina General Statutes are
>knowledgeable persons, many of whom are lawyers, and they undoubtedly
>knew at the time the law was passed that traveling was a "RIGHT" and
>not a privilege. If this were the case, then the mistake would be
>unilateral. A unilateral mistake known to the other party is
>sufficient grounds to void a contract.
>60.                              FRAUD
>
>     60.1      Fraud may consist in conduct, and may exist where
>     there are no positive representations, Silence where honesty
>     requires speech, may sometimes constitute fraud. The rule
>     that a man may be silent and safe is by no means a universal
>     one. Where one contracting party knows that the other is
>     bargaining for one thing, he has no "RIGHT" by silence to
>     deceive him and suffer him to take an altogether different
>     thing, from that for which he bargains. (Emphasis added).
>     See:
>          Parish v. Thurston 87 Ind. 437 (1882).
>
>61.       If the driver's license is a contract, a case can be made
>for the contention that it was an agreement obtained by the State by
>fraud.
>
>     61.1      Fraud is a generic term which embraces all the
>     multifarious means which human ingenuity can devise and are
>     resorted to by one individual to get any advantage over
>     another. No definite and invariable rule can be laid down as
>     a general proposition defining fraud, as it includes all
>     surprise, trick, cunning, dissembling, and unfair ways by
>     which another is deceived. (Emphasis added).
>     See:
>          Wells v. Zenz, 236 P. 485.
>
>62.       With respect to contracts, the following statements can be
>made:
>
>     62.1      However, in the field of contracts, there are
>     certain standard tests for a claim of fraud which make it
>     possible to define fraud, in connection with a contract as
>     any trick or artifice whereby a person by means of a
>     material misrepresentation creates an erroneous impression
>     of the subject matter of a proposed transaction, and thereby
>     induces another person to suffer damage computable in money.
>     The misrepresentation may result from a false statement, a
>     concealment, or a nondisclosure. The elements of a
>     contractual fraud are the following:
>
>     62.1.1    A material misrepresentation, created by a
>     statement, a concealment, or a nondisclosure.
>
>     62.1.2    An intention to defraud.
>
>     62.1.3    Reliance on the representation by the defrauded
>     party.
>
>     62.1.4    Damage caused to the defrauded party as the result
>     of his acting upon the representation.
>     See:
>          Bergh Business Law p. 56
>
>63.       In view of the many decisions by high courts, including the
>Supreme Court of the United States, that traveling is a "RIGHT" and
>not a privilege, it would be hard to defend the proposition that the
>General Assembly of the State of North Carolina was unaware of these
>decisions, particularly since many legislators are and were lawyers
>knowledgeable in such matters. In fact, when one considers the
>definition of streets or highways in Sections of the North Carolina
>General Statutes, the Evidence is conclusive that the legislature knew
>and knows that travelling is a "RIGHT."
>64.       Therefore, the statements in the North Carolina General
>Statutes that travelling is a privilege and that a driver's license is
>necessary before traveling constitutes a material misrepresentation of
>fact to this possessor of a driver's license. And since the
>legislature is and was aware of the fact that traveling was not a
>privilege, but a "RIGHT," the statement that traveling is a privilege,
>when applied to this Sovereign, constitutes a willful intention to
>deceive and, therefore, to defraud.
>65.       This Sovereign did rely upon the representations of the
>legislature that traveling was a privilege when he obtained his
>driver's license, else he would not have obtained one.
>66.       This Sovereign did suffer damage as a result of his acting
>upon the representation of the legislature at least to the extent of
>the license fee.
>67.       In as much as all the necessary elements of fraud are
>present if the driver's license is considered a contract, the
>"contract" is void.
>                                DURESS
>68.       With respect to duress, Bergh supra supplies the following
>definition:
>
>     68.1      A party must consent to a contract of his own free
>     will; free consent is an essential element of an agreement.
>     Consequently, if he is coerced into signing a contract by
>     fear induced by a threat to cause personal injury to himself
>     or to some close relative, the contract will not be a real
>     agreement and it will be voidable at his option. The threat
>     of personal injury must be a threat to inflict immediate
>     bodily injury or to institute a criminal prosecution against
>     the person threatened or some close relative.
>
>69.       Since it was essential to this Sovereign in pursuing his
>occupation of common "RIGHT" to use a vehicle upon the streets or
>highways in North Carolina, and since the State of North Carolina
>threatens to and does prosecute persons in criminal actions for not
>possessing a driver's license, regardless of their status, this
>Sovereign did obtain a driver's license under duress. If then the
>driver's license is a contract, the contract is unenforceable and
>invalid because of this duress.
>70.       With respect to alterations, Bergh supra has the following
>comments:
>
>     70.1      Any material alteration in a written contract by
>     one party without the consent of the other party gives this
>     latter the option of treating the contract as discharged or
>     enforcing it as it stood before the alteration.
>
>71.       If the driver's license is a contract, it is a written
>contract, at least to the extent that the statutes of the North
>Carolina General Statutes are written. Each time that the
>General Assembly amends or modifies or adds to any of the statutes of
>the North Carolina General Statutes, the terms of the contract are
>changed. Since this Sovereign then has the option of considering the
>contract as discharged, he then chooses to do so as of the first
>change in the North Carolina General Statutes following his
>application for a driver's license.
>72.       If it is contended that the driver's license is an implied
>contract, the Statute of Frauds comes into play. North Carolina has
>enacted a Statute of Frauds.
>73.       In the following cases the agreement is invalid, unless the
>same or some note or memorandum of it, be in writing and
>subscribed by the party charged, or by his agent. Evidence, therefore,
>of the agreement cannot be received without the writing or secondary
>evidence of its contents:
>
>     73.1      An agreement that by its terms is not to be
>     performed within a year from the making thereof.
>
>     73.2      . . . . . . .
>
>74.       Since the term of the driver's license contract is so many
>years and the contract is not written, the Statute of Frauds does
>apply and the contract is unenforceable.
>75.       The discussion up to this point has been concerned with
>bilateral contracts in which each party promises something to the
>other party. Is it possible that the driver's license is a unilateral
>contract? A unilateral contract is described as:
>
>     75.1      A unilateral contract is a one-sided contract in
>     the sense that only one side makes a promise, and the other
>     side performs an act for which the promise was given.
>     See:
>          Bergh supra.
>
>76.       Since the act expected by the State is obedience to the
>statutes of the North Carolina General Statutes, what promise has the
>State offered in exchange for this act? The only promise that the
>
> >>> Continued to next message...
>--------- End forwarded message ----------
      


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