How did you come to possess the DRIVER LICENSE?











Persons dealing with a public agency are presumed to know the law and are bound at their peril to ascertain and follow those procedures necessary to enter into a binding contract. (See Miller v. McKinnon, supra, 20 Cal.2d at p. 89; Bear River etc. Corp. v. County of Placer (1953) 118 Cal.App.2d 684 , 690 [258 P.2d 543].)
SEYMOUR v. STATE OF CALIFORNIA, 156 Cal.App.3d 200
[Civ. No. 22606. Court of Appeals of California, Third Appellate District. March 9, 1984.]

We thus require citizens to apprise themselves not only of statutory language but also of legislative history, subsequent judicial construction, and underlying legislative purposes (People v. Grubb (1965) 63 Cal.2d 614, 620 [47 Cal.Rptr. 772, 408 P.2d 100]). (See generally Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court (1960) 109 U. Pa. L.Rev. 67.)
Walker v. Superior Court (1988) 47 Cal.3d 112

CALIFORNIA CIVIL CODE
   
        1708.  Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.

As is the case of illegal arrests, the officer is bound to know these fundamental rights and  privileges, and must keep within the law at his peril.
Thiede v. Town Of Scandia Valley, 217 Minn. 218. 231 (1944)

“...one who interferes with another's liberty does so at his peril”.
Knight v. Baker, 117 Ore. 492, 244 Pac. 543, 544 (1926).
   
"One who interferes with another's  liberty does so at his peril."
University of  Pennsylvania Law Review, vol. 75, p. 491,  April 1927.
   
One who interferes with another’s liberty does so at his peril.
McBeath v. Campbell, 12 S.W.2d 118, 122 (1929)

When the  plaintiff has shown that he was arrested, imprisoned or restrained of his liberty  by the defendant,  "the law presumes it to be unlawful."
People v. McGrew (1888) 77 Cal. 570





"Everyone is presumed to know the law.   And all applicable laws in existence when an agreement is made necessarily enter into it and form a part of it as fully as if they were expressly referred to and incorporated in its terms." (6 Cal.Jur. 310, § 186; Brown v. Ferdon, 5 Cal.2d 226  [54 P.2d 712]; Chapman v. Jocelyn, 182 Cal. 294 [187 P. 962]; Long v. Newman, 10 Cal.App. 430 [102 P. 534].)

The contracting parties were, therefore, presumed to know all existing laws...
Robertson v. Dodson, 54 Cal.App.2d 661
[Civ. No. 12069. First Dist., Div. One. Oct. 2, 1942.]

Title 37, American Jurisprudence 2d at section 8 states, in part: 

       "Fraud vitiates every transaction and all contracts.   Indeed, the principle is often stated, in broad and sweeping language, that fraud destroys the validity of everything into which it enters, and that it vitiates the most solemn contracts, documents, and even judgments."

Vitiate

    To impair or make void; to destroy or annul, either completely or partially, the force and effect of an act or instrument.

    Mutual mistake or Fraud, for example, might vitiate a contract.
    West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

vitiate - verb abolish, abrogate, annul, blight, cancel, counteract, damage, depravare, destroy, disannul, impair, injure, invalidate, make faulty, make imperfect, make immure, make ineffective, make void, mar, negate, negative, neutralize, nullify, overturn, pervert, poison, pollute, quash, render defective, render inefficacious, rescind, reverse, spoil, sully, tamper with, undo, vitiare, weaken

Foreign phrases:  Crimen omnia ex se nata vitiat.   Crime vitiates all that is born of it.

CALIFORNIA CIVIL CODE

    1550.  It is essential to the existence of a contract that there should be:

   1. Parties capable of contracting;
   2. Their consent;
   3. A lawful object; and,
   4. A sufficient cause or consideration.

1565.  The consent of the parties to a contract must be:

   1. Free;
   2. Mutual; and,
   3. Communicated by each to the other.

1566.  A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties, in the manner prescribed
by the Chapter on Rescission.

1567.  An apparent consent is not real or free when obtained through:

       1. Duress;
       2. Menace;
       3. Fraud;
       4. Undue influence; or,
       5. Mistake.

1568.  Consent is deemed to have been obtained through one of the causes mentioned in the last section only when it would not have been
given had such cause not existed.

1569.  Duress consists in:

 1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or
adopted child of such party, husband, or wife;
 2. Unlawful detention of the property of any such person; or,
 3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harrassing or oppressive.

1570.  Menace consists in a threat:

1. Of such duress as is specified in Subdivisions 1 and 3 of the last section;
2. Of unlawful and violent injury to the person or property of any such person as is specified in the last section; or,
3. Of injury to the character of any such person.

1571.  Fraud is either actual or constructive.

1572.  Actual fraud, within the meaning of this Chapter, consists in any of the following acts, committed by a party to the contract, or
with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true,
though he believes it to be true;
3. The suppression of that which is true, by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or,
5. Any other act fitted to deceive.

1573.  Constructive fraud consists:

1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,
2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.

1574.  Actual fraud is always a question of fact.

1575.  Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such
confidence or authority for the purpose of obtaining an unfair advantage over him;
2. In taking an unfair advantage of another's weakness of mind;
or,
3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.

1580.  Consent is not mutual, unless the parties all agree upon the same thing in the same sense.  But in certain cases defined by the
Chapter on Interpretation, they are to be deemed so to agree without regard to the fact.

1581.  Consent can be communicated with effect, only by some act or omission of the party contracting, by which he intends to communicate
it, or which necessarily tends to such communication.


1619.  A contract is either express or implied.

1620.  An express contract is one, the terms of which are stated in words.

1621.  An implied contract is one, the existence and terms of which are manifested by conduct.

1622.  All contracts may be oral, except such as are specially required by statute to be in writing.


1688.  A contract is extinguished by its rescission.

1689.  (a) A contract may be rescinded if all the parties thereto consent.
           (b) A party to a contract may rescind the contract in the following cases:
      
(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.
(2) If the consideration for the obligation of the rescinding party fails, in whole or in part, through the fault of the party as to whom he rescinds.
(3) If the consideration for the obligation of the rescinding party becomes entirely void from any cause.
(4) If the consideration for the obligation of the rescinding party, before it is rendered to him, fails in a material respect from any cause.
(5) If the contract is unlawful for causes which do not appear in its terms or conditions, and the parties are not equally at fault.
(6) If the public interest will be prejudiced by permitting the contract to stand.
(7) Under the circumstances provided for in Sections 39, 1533, 1566, 1785, 1789, 1930 and 2314 of this code, Section 2470 of the
Corporations Code, Sections 331, 338, 359, 447, 1904 and 2030 of the Insurance Code or any other statute providing for rescission.







                                                                                  



DRAFTED BY THE DOMINANT PARTY UNILATERALLY WITH NO OPTION FOR THE APPLICANT TO ALTER IT AND OFFERED ON A "TAKE IT OR LEAVE IT" BASIS.


            Every single one of them who wants a DRIVER LICENSE will HAVE TO fill out the APPLICATION the DMV employee shoved across the counter.   That APPLICATION is an ADHESION CONTRACT.   EVERY "APPLICATION" FORM IS AN "ADHESION CONTRACT".   I wonder how many people would move if it was announced over the intercom that all those people in lines who want to deliver pizza or flowers or work for Yellow Cab Company please step to line 4?





“A catch-all provision imposing an annual license fee on any person, firm, association, partnership, or corporation engaged in any business, occupation, or profession, not subject to any specific license fee imposition has been held to violate the due process clause of the Federal Constitution and a provision of the state Constitution guaranteeing to all citizens the enjoyment of life and liberty, with the means of acquiring and possessing property”. 
51 Am Jur.2d. §17, p. 24.

“There are, of course, limitations on the legislature’s powers classifying various pursuits with respect to licensing requirements”. Ibid p. 36

“A state cannot impose restrictions on the acceptance of a license that will deprive the licensee of  his constitutional[ly secured] rights”.  
Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d. 325, 144 ALR 839 [My addition in the brackets for clarification purposes]

"A contract may be rescinded by the act of a party entitled and desiring to rescind."
McNeese v. McNeese, (1923) 190 Cal. 402, 213 P. 36.

A contract obtained under any element of fraud such as non-disclosure, misrepresentation, withholding of pertinent facts can be rescinded by serving a notice of rescission.
Prewitt v. Sunnymead Orchard Corp., 189 Cal. 723.

“A writing is ‘void ab initio’ in the case of fraud in the inception, and it need not be formally rescinded as a prerequisite to right of avoidance”.
Bonacci v. Massachusetts Bonding Ins. Co., (1943) 58 CA 2d 657,664.

(Ab initio =  from the beginning)

“Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading”.
U.S. v. Prudden, 424 F. 2nd 1021 5th Cir. (1970),  U.S. v. Tweel, 550 F. 2nd 297 (1977)

“According to” the Legislature:

Statutes of California, 1893, p.57, sect.1 (Feb.28, 1893) “SECTION 1.  All persons who have, or shall hereafter have, claims on contract or for negligence against the State not allowed by the State Board of Examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the State in any of the Courts of this State of competent jurisdiction, and prosecute the same to final judgment.  The rules of practice in civil cases shall apply to such suits, except herein otherwise provided”.

Contract issues are processed according to the rules of Civil Procedure.
Welsbach Company v. State of California,  206 Cal. 556, licenses are founded on contract and subject to civil procedure.

[un-refuted affidavits are the basis for summary judgment and res judicata].  Res Judicata and collateral estoppel are applicable in criminal proceedings independent of the  concept of double jeopardy.
People v. Gephart, (1979) 93 CA3d. 989, 156 Cal.Rptr. 489. [Emphasis mine]

Prosecutor lost jurisdiction due to the failure to act within the time frame stated in the documents.
Mumaw v, City of Glendale, (1969) 270 Cal.App.2d. 454, 76 Cal.Rptr. 245 [time limits are jurisdictional] [Emphasis mine]

Under the doctrine of Res Judicata, any issue litigated in an administrative arena, cannot be re-litigated under the doctrine of Res Judicata.
City and County of San Francisco v. Padilla, (1972) 23 Cal.App3d. 388, 100 Cal.Rptr. 223, 229 





CALIFORNIA EVIDENCE CODE 

§180.  "Personal property" includes money, goods, chattels, things in action, and evidences of debt.

§185.  "Property" includes both real and personal property.

§637. Ownership of things possessed

               The things which a person possesses are presumed to be owned by him.

(Stats. 1965, c. 299,  § 2)

§638.  Ownership of property by person who exercises acts of ownership

                A person who exercises acts of ownership over property is presumed to be the owner of it.

(Stats. 1965, c. 299,  § 2)

CALIFORNIA CIVIL CODE §2881. Lien, how created 

 A lien is created :

 1.   By contract of the parties; or
 2.   By operation of law
Fee.   A charge fixed by law for services of public officers or for use of a privilege under control of government.  Fort Smith Gas Co. v. Wiseman, 189 Ark. 675, 74 S.W.2d 789, 790.   BLACK’S LAW DICTIONARY, FORTH EDITION, p. 740

Lien.  A charge or security or incumbrance upon property.  Theatre Realty Co. v. Aronberg-Fried Co., C.C.A.Mo., 85 F.2d 383, 388, McCarty v. Robinson, 222 Ala. 287,  131 So. 895, 896; Springer v. J.R. Clark Co., C.C.A. Minn., 138 F.2d 722, 726.  Preferred or privileged claims given by statute or by admiralty law.  American Legion Post No. 279  v. Barrett, 371 Ill. 78, 20 N.E. 2d 45, 50; Marshall v. People of State of new York, 254 U.S. 380, 41 S.Ct. 143, 145, 65 L.Ed. 315.  

BLACK’S LAW DICTIONARY, FOURTH EDITION, p. 1072

License Fee or Tax.  Charge imposed by sovereign for a privilege.  Pennsylvania Liquor Control Board  v. Publicker Commercial Alcohol Co., 347 Pa. 555, 32 A.2d 914, 917.  BLACK’S LAW DICTIONARY, FOURTH EDITION, p. 1069

CALIFORNIA CODE OF CIVIL PROCEDURE 

§25.  Civil action arise out of obligations or injuries 

 A civil action arises out of:

    1.   An obligation;
    2.   An injury.
§26.  Obligation defined

An obligation is a legal duty, by which one person is bound to do or not to do a certain thing, and arises from:
 
   
1.   Contract; or,
2.   Operation of law.

            The code sections above HAVE TO be bounced off the two below, because the two below are the benchmark for the drafting of the ones above, they comport.

CALIFORNIA CODE OF CIVIL PROCEDURE

1897.  The organic law is the constitution of government, and is altogether written.  Other written laws are denominated statutes.  The written law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States.

CALIFORNIA CODE OF CIVIL PROCEDURE

1898.  Statutes are public or private.  A private statute is one which concerns only certain designated individuals, and effects only their private rights.  All other statutes are  public, in which are included statutes creating or affecting corporations.

CIVIL CODE

654.  The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.  In this Code, the thing of which there may be ownership is called property.

655.  There may be ownership of all inanimate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the good will of a business, trade marks and signs, and of rights created or granted by statute.

657.  Property is either:

   l. Real or immovable; or,
   2. Personal or movable.

658.  Real or immovable property consists of:

   l.    Land;
   2.   That which is affixed to land;
   3.   That which is incidental or appurtenant to land;
   4.   That which is immovable by law; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.

659.  Land is the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law.

663.  Every kind of property that is not real is personal.

678.  The ownership of property is either:

   1.   Absolute; or,
   2.   Qualified.

679.  The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws.

680.  The ownership of property is qualified:

   1.   When it is shared with one or more persons;
   2.   When the time of enjoyment is deferred or limited;
   3.   When the use is restricted.

681.  The ownership of property by a single person is designated as a sole or several ownership.








CASES AND PROBLEMS

ON

CONTRACTS

John D. Calamari
Wilkinson Professor of Law, Fordham University

Joseph M. Perillo
Professor of Law, Fordham university

West Publishing Co.

2004 
________________

American Casebook Series

Parol (= oral) Evidence and Interpretation

The meaning of words cannot be ascertained in a vacuum.*  The function of interpretation of a contract is to ascertain the intention of the parties as manifested by the words they used to evidence their agreement.

...it requires that a court attempt to place itself in the same situation as that of the parties at the time of the execution.

* This is clearly recognized by Wigmore, who traces the development of the parol evidence rule and states that:

“The truth had finally to be recognized that word always need interpretation; that the process of interpretation inherently and invariably means the ascertainment of the association between words and external objects; and a free resort to extrinsic matters for applying and enforcing the document”.

“Once freed from the primitive formalism which views the document as a self-contained and self-operative formula, we can fully appreciate the modern principle that the words of a document are never anything but indices to extrinsic things, and that therefore all the circumstances must be considered which go to make clear the sense of the words,-that is, their association with things’.
9 Wigmore on Evidence §2470 at p. 227 (3d. Ed. 1940)

RESCISSION OF CONTRACT

In a sense, anyone who is fraudulently induced to enter a contract is “injured”; his “interest in making a free choice and in exercising his own best judgement in making decisions with respect to economic transactions and enterprises has been interfered with”. (See McCleary, Damage as a Requisite to recission for Misrepresentation, 36 Mich.L.Rev.1, 227, 245)

“...What is plainly injurious to good faith ought to be considered as a fraud sufficient to impeach a contract”, and that an improvident agreement may be avoided - “because of surprise, or mistake, want of freedom, undue influence, the suggestion of falsehood, or the suppression of truth”

AVOIDANCE FOR MISCONDUCT OR MISTAKE, UNCONSCIONABILITY AND DUTY TO READ

“An ‘unconscionable contract’ has been defined to be such as no sensible man not under delusion, duress or in distress would make, and such as no honest and fair man would accept.  There exists here and ‘inequality so strong, gross and manifest that it is impossible to state it to a man of common sense without producing an exclamation at the inequity of it’.  ‘Where the inadequacy of the price is so great that the mind revolts at it the court will lay hold on the slightest circumstances of oppression or advantage to rescind the contract’”.

“It is not the policy of the law to restrict business dealings or to relieve a party of his own mistakes of judgment, but where on party has taken advantage over him, and the latter, owing to his condition, has encumbered himself with a heavy liability or an onerous obligation for the sake of a small or inadequate present gain, there will be relief granted”.  Stiefler v. McCullough (1933), 97 Ind.App. 123, 174 N.E. 823

It seems a deplorable abuse of justice to hold a man of poor education, to a contract prepared by the attorneys of American Oil, for the benefit of American Oil which was presented to Weaver on a “take it or leave it basis”.

“These principles are not foreign to the law of contracts.  Fraud and duress are not the only grounds upon which courts refuse to enforce contracts.  The law is not so primitive that it sanctions every injustice except brute force and downright fraud.  More specifically, the courts generally refuse to lend themselves to the enforcement of a ‘bargain’ in which one party has unjustly taken advantage of the economic necessities of the other”.
Justice Frankfurter in dissenting opinion in the United States v. Bethlehem Steel Corp. (1942) 315 U.S. 289, 326, 62 S.Ct. 581, 599, 86 L.Ed. 855, 876

...in present-day commercial life the standardized mass contract has appeared.  It is used primarily by enterprises with strong bargaining power and position.  The weaker party, in need of the good or services, is frequently not in a position to shop around for better terms, either because the author of the standard contract has a monopoly (natural or artificial) or because all competitors use the same clauses.

Judge Frankfurter’s dissent was written nearly twenty years ago. It represents a direction and philosophy which the law, at that time was taking and is now known as the parole evidence rule. The parole evidence rule states that an agreement or contract, signed by parties is conclusively presumed to represent and integration or meeting of the minds of the parties.  This is an archaic rule from the common law.  The objectivity of the rule has as its only merit its simplicity of application which is far outweighed by its failure in many cases to represent the actual agreement, particularly where a printed form prepared by one party contains hidden clauses unknown to the other party is submitted and signed.

When a party can show that the contract, which is sought to be enforced, was in fact an unconscionable one, due to a prodigious amount of bargaining power on behalf of the stronger party, which is used to the stronger party’s advantage and is unknown to the lesser party, causing a great hardship and risk on the lesser party, the contract provision, or the contract as a whole, if the provision is not separable, should not be enforceable on the grounds that the provision is contrary to public policy.  The party seeking to enforce such a contract has the burden of showing that the provisions were explained to the other party and came to his knowledge and there was in fact a real and voluntary meeting of the minds and not merely an objective meeting.

Without regard to whether or not he was aware of its contents, a person will be relieved of his obligations under a contract under circumstances falling into two main categories: (a) where the contract is not enforceable because of occurrences or omissions (fraud, concealment, etc.) Surrounding its execution and where, (2) the contract is not enforceable because of the nature or subject of the contract (illegality of subject mater).

An adhesion contract is one that has been drafted by unilaterally by the dominant party and then presented on a “take it or leave it” basis to the weaker party, who has no real opportunity to bargain about its terms. (Restatement 2d, Conflict of Law §332a, Comment e) (C.J.S. Contracts §10 p. 581.)

(C.J.S. is a law encyclopedia series, Corpus Juris Secundum)
 

Quod Initio Non Valet, Tractu Temporis Non Valet
A thing void in the beginning does not become valid by lapse of time

CONDITIONS, PERFORMANCE AND BREACH

It is the province of the courts to interpret (and not to make) contracts by ascertaining the legal import of the language employed by the parties themselves to express their agreement.  Dover Glass Works Co. v. American Fire Ins. Co., 1 Marv. 32, 29 A. 1039 (1894).  Our function is not to re-write or re-state what the parties have said.  We read what is written and when it is plain, when only one meaning can be found in the words used, our duty is to state that meaning and go on to the next step in the judicial process.

At comment f to§237 of Restatement (second) of Contracts, supra pp. 540 -41, we find the following analysis of the reasonable expectations doctrine:

“Although customers typically adhere to standardized agreements and are bound by them without even appearing to know the standard terms in detail, they are not bound to unknown terms which are beyond the range of reasonable expectation.  A debtor who delivers a check to his creditor with the amount blank does not authorize the insertion of an infinite figure.  Similarly, a party who adheres to the other part has reason to believe that the adhering party would not have accepted the agreement if he had known that the agreement contained the particular term. Such a belief or assumption may be shown by the prior negotiations or inferred from the fact that the term is bizarre or oppressive, from the fact that it eviscerates the non-standard terms explicitly agreed to, or from the fact that it eliminates the dominant purpose of the transaction.  The inference is reinforced if the adhering party never had and opportunity to read the term, or if it is illegible or otherwise hidden from view.  This rule is closely related to the policy against unconscionable terms and the rule of interpretations against the draftsman”.



       


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