Law- The Basics
You do not need a degree in law to deal with banks and debt collectors, however a general understanding of some of the terms we use is not only beneficial to the process, it can also make it more satisfying. It also highlights how the law is often used against us and how little we understand the law in general.
Ens legis: "Ens Legis. L. Lat. A creature of the law; an artificial being, as contrasted with a human being. Applied to corporations, considered as deriving their existence entirely from the law." "Blacks Law Dictionary, Fourth Edition, 1951. (This term is used in the statutory declaration on the Dealing with the courts page). Names of men and women appearing in ALL-CAPITAL LETTERS, even abbreviated versions (with/without initials, etc.) of the true names, are corporate/corporately "colored" renditions of a true name. Colored refers to the fact that they are fictitious, "having the appearance." They do not identify the "being," the real person, you, associated therewith; such construct of names represent property, specifically intellectual property... YOUR PROPERTY. It is unfortunate that this fact is overlooked by almost everyone in society, EXCEPT, the "legal masters" whose existence is predicated upon its exploitation. See also Capitis Diminutio Maxima below.
Capitis Diminutio
Gage Canadian Dictionary 1983 Sec. 4 defines Capitalize adj. as "To take advantage of -
To use to ones own advantage."
Blacks Law Dictionary – Revised 4th Edition 1968, provides a more comprehensive definition as follows …
Capitis Diminutio In Roman law. A diminishing or abridgment of personality; a loss or curtailment of a man's status or aggregate of legal attributes and qualifications.
Capitis Diminutio Minima - The lowest or least comprehensive degree of loss of status. This occurred where a man's family relations alone were changed. It happened upon the arrogation [pride] of a person who had been his own master, (sui juris,) [of his own right, not under any legal disability] or upon the emancipation of one who had been under the patria potestas. [Parental authority] It left the rights of liberty and citizenship unaltered. See Inst. 1, 16, pr.; 1, 2, 3; Dig. 4, 5, 11; Mackeld. Rom.Law, 144.
Capitis Diminutio Media - A lessor or medium loss of status. This occurred where a man loses his rights of citizenship, but without losing his liberty. It carried away also the family rights.
Capitis Diminutio Maxima - The highest or most comprehensive loss of status. This occurred when a man's condition was changed from one of freedom to one of bondage, when he became a slave. It swept away with it all rights of citizenship and all family rights.
Sui Juris: In civil law the phrase sui juris indicates legal competence, the capacity to manage one’s own affairs (Black's Law Dictionary, Oxford English Dictionary). Thus in Roman law the caregiver or guardian of a spendthrift (prodigus) or of a person of unsound mind (furiosus),
Person: Specifically the person is that legal subject or substance of which the rights and duties are attributes. A human being is not a person because he is a human being, but because rights and duties have been ascribed to him. But not all human beings are persons, as was the case in Olde England when there were slaves.(Blacks 3rd).
Society: A society is defined as a number of people joined by mutual consent to deliberate, determine and act for a common goal.
Legal: A legal act is performed in accordance with the forms and usages of law, or in a technical manner. In this sense, illegal approaches the meaning of invalid. For example, a contract or will, executed without the required formalities, might be regarded as invalid or illegal, but could not be described as unlawful.
Lawful: A lawful act is authorized, sanctioned, or not forbidden by law. The term lawful more clearly suggests an ethical content than does the word legal. The latter merely denotes compliance with technical or formal rules, whereas the former usually signifies a moral substance or ethical permissibility. An additional distinction is that the word legal is used as the synonym of constructive, while lawful is not. Legal fraud is Fraud implied by law, or made out by construction, but lawful fraud would be a contradiction in terms. Legal is also used as the antithesis of equitable, just. As a result, legal estate is the correct usage, instead of lawful estate. Under certain circumstances, however, the two words are used as exact equivalents. A lawful writ, warrant, or process is the same as a legal writ, warrant, or process.
Common Law: A system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. In its early development common law was largely a product of three English courts; King's Bench, Exchequer, and the Court of Common Pleas, which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term “common law” is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to its statutory law or legislation (see statute), and also to signify that part of the legal system that did not develop out of equity, maritime law, or other special branches of practice.
All Canada except Quebec and all of the United States except Louisiana follow common law. U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. Later decisions of English courts have only persuasive authority.
Common law may be summarised by three simple rules:
- You do not steal from anyone
- You do not harm anyone
- You do not use fraud in your contracts
Statute Law: A Statute is a rule created by a representative governing body of a society designed to create common goals, which carries the force of law by the consent of the governed. A Statute only carries the force of law upon you if you consent to it. If you do not give your consent, a Statute cannot affect you in any way whatsoever. And the courts know this. You may not, but they certainly do and the last thing they will do is tell you. In point of fact they will hide this from you at every opportunity. On the other hand, if you tell them, they will accept it because they know it is actually true.
Law of Contract
A contract is an exchange of promises between two or more parties to do, or refrain from doing, an act which is enforceable in a court of law. It is a binding legal agreement. That is to say, a contract is an exchange of promises for the breach of which the law will provide a remedy.
The elements of a Contract:
Typically, in order to be enforceable, a contract must involve the following elements:
A "Meeting of the Minds" (Mutual Consent)
The parties to the contract have a mutual understanding of what the contract covers. For example, in a contract for the sale of a "mustang", the buyer thinks he will obtain a car and the seller believes he is contracting to sell a horse, there is no meeting of the minds and the contract will likely be held unenforceable.
Offer and Acceptance
The contract involves an offer (or more than one offer) to another party, who accepts the offer. For example, in a contract for the sale of a piano, the seller may offer the piano to the buyer for $1,000.00. The buyer's acceptance of that offer is a necessary part of creating a binding contract for the sale of the piano. If an offer is in writing, it has to be signed by both parties, otherwise it is a unilateral contract which cannot be enforced in a court of law.
Mutual Consideration (The mutual exchange of something of value)
In order to be valid, the parties to a contract must exchange something of value. In the case of the sale of a piano, the buyer receives something of value in the form of the piano, and the seller receives money. However, if a credit card company has created the money 'out of thin air' on computer keyboard, is it valid consideration?
Performance or Delivery
In order to be enforceable, the action contemplated by the contract must be completed. For example, if the purchaser of a piano pays the $1,000 purchase price, he can enforce the contract to require the delivery of the piano. However, unless the contract provides that delivery will occur before payment, the buyer may not be able to enforce the contract if he does not "perform" by paying the $1,000.
Good Faith
It is implicit within all contracts that the parties are acting in good faith. For example, if the seller of a "mustang" knows that the buyer thinks he is purchasing a car, but secretly intends to sell the buyer a horse, the seller is not acting in good faith and the contract will not be enforceable.
