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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