I N V I S I B L E C O N T R A C T S

George Mercier

INTRODUCTION

[Pages 1-88]

[Certain conventions have been used in converting INVISIBLE CONTRACTS to an electronic medium. For an explanation of the conventions used, please download the file INCONHLP.ZIP for further illumination. Other background information as well is contained in INCONHLP.ZIP. It is advisable to EXIT this file right now and read the contents of INCONHLP.ZIP before proceeding with your study of this file.]

[COMMENTARY FOR THIS FILE: There is some real heavy-duty data in this one. Lots of food for thought. Some of it is buried in the religious oriented passages, so don't avoid or ignore those, lest you miss out on some real gems. There is also some extremely interesting passages regarding the impending (and planned) Great Depression II of the 1990's, even more interesting when one considers these passages were written over 7 years ago, and yet they are so accurate and hit the nail on the head as to current unfolding events regarding the economy.]

GEORGE MERCIER

December 31, 1985

DEAR MR. MAY:

I was intrigued to see that you have retained an interest in my Letter to Armen Condo, even if that Letter was intended to be the isolated private correspondence between two people. After receiving numerous inquiries about that Letter, I have been quite surprised at the extent to which that Letter has been so widely disseminated. At the time I wrote it, I was under the assumption that most folks already knew of the underlying evidentiary Commercial contract factual settings that Title 26, Section 7203 WILLFUL FAILURE TO FILE prosecutions are built on top of.

In your Letter you state that you have some questions about the bank account contract as being the exclusive Equity instrument that initiates the attachment of liability for the positive administrative mandates of Title 26.

Please be advised that your reservations are well founded and quite accurate, that is, if you did read such an element of exclusivity out of the Letter. The reason why your reservations are accurate is because I did not mean to state or infer any such thing; however, that is not the problem here. Armen Condo's bank accounts were sitting in front of the Judge during his arraignment and all pre-Trial hearings, and those Commercial contracts are more than strong enough to warrant incarceration on mere default therein. Since the nature of bank accounts involves the evidentiary presence of written admissions, together with the acceptance of Federal Commercial benefits therefrom, the presence of reciprocity expectations contained therein, [001]

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RECIPROCITY is defined as a relational state where two or more parties, enjoying each other's benefits and each possessing various expectations from each other, are being reciprocal to each other, a kind of "give and take" going on back and forth; and so in this relational setting, there are some kinds of interdependence, mutuality, and cooperation expectations in effect between the parties. But the key elements that will be repeated over and over again in this Letter, is that where the initial benefits were not first exchanged, then the secondary obligation to reciprocate does not exist, either. For example, the word RECIPROCITY surfaces frequently when Governments discuss exchanging favorable trade benefits with each other; each Government controls a source of benefits the other wants, and so now the reciprocating mutuality and exchange of benefits between the jurisdictions is called RECIPROCITY, but its meaning has been elusive for some:

"The term RECIPROCITY as now currently used in most cases with only a vague or very general notion of its meaning... [An] attempt is made to define reciprocity when it is specified that the PRIVILEGES granted must be equivalent. Thus one writer, basing his definition upon a study of the public papers of the Presidents of the United States, remarks:

"Reciprocity is the granting by one nation of certain commercial privileges to another, whereby the citizens of both are placed upon an equal basis in certain branches of commerce."

- MESSAGES AND PAPERS OF THE PRESIDENTS, Page 562."

Whenever there is an exchange of benefits and there remains some lingering expectations of some duty between two parties, then an actual INVISIBLE CONTRACT is in effect [as I will discuss later], as it is said that the duty owed back to the party initially transferring the benefits is RECIPROCAL in nature. Hence, the steam engine is said to be a RECIPROCAL ENGINE: Steam is forced into a chamber pushing a piston out, and the piston pushes in turn a lever attached to a wheel; now the wheel revolves because the steam initially pushed out a piston. So when the revolving wheel comes back fully around, it is now the force of the wheel that pushes back the lever, which pushes in turn the piston back into the chamber, that clears the chamber for a second and successive injection of steam. [See the ENCYCLOPEDIA BRITANNICA ["Reciprocating Engines"] (London, 1929)].

Question: What happens when the wheel (having gotten what it wanted by being turned by the lever and having initially accepted the benefits of the steam pushing the piston), freezes up for some reason and does not reciprocate as expected and now refuses to push the piston back into the chamber? What happens is that the engine stops; everything grinds to a halt; and damages are created.

...Well, as we turn from a tangible setting where machinery is in motion, over to legal reasoning handed down from the Judiciary of the United States, no Principles ever change -- because when we turn to the Supreme Court rulings in hot political areas of so-called DRAFT PROTESTING and TAX PROTESTING, by the end of this Letter you will see the true meaning of RECIPROCITY, and of the damages created by refusing to reciprocate when expected. Yes, often there are contracts invisible to the Defendant that actually control grievances in a Courtroom, and there is to be learned a true natural origin of contracts and of reciprocity; the origin lies not with American judges trying to create seemingly fictional legal justifications, but in NATURE, and actually in the mind of Heavenly Father who, as we will see, created what is now called NATURE.

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and other factors, bank account instruments are CONCLUSIVE EVIDENCE of Taxpayer Status by virtue of participation in the closed private domain of INTERSTATE COMMERCE. And by these CONCLUSIVE EVIDENCE fellows entering into the Armen Condo factual setting the way they did, those bank accounts were the only evidentiary items that I talked about. [002]

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CONCLUSIVE EVIDENCE is deemed incontrovertible: Because either the Law does not allow contradiction for some reason, or in the alternative, because the inherent nature of the Evidence is so strong and so convincing that it automatically overrules any other mitigating or vitiating Evidence that could possibly be presented. Therefore it is deemed provident that CONCLUSIVE EVIDENCE, all by itself, establishes the proposition that is sought at hand, beyond any reasonable or possibly legitimate doubt; this CONCLUSIVE EVIDENCE RULE is very reasonable in many situations.

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The other "evidence" the local situ United States Attorney presented to the Jury was distraction evidence for public and Jury consumption purposes only, and means absolutely nothing to appellate forums (for purposes of ascertaining Taxpayer Status). Bank accounts are the highest and best evidence "Cards" the King has to deal with, even better than old 1040's, and so that bank account evidence should be the very first slice of evidence to go when an Individual has concluded within himself that a change in Status is now desired. [003]

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I am aware that the linguistic use of the word "King", as a moniker to characterize the combined Executive and Legislative branches of the United States is a bit novel, and I know that most folks would feel uncomfortable with it at first. Yet, despite the differential in comfort levels in the use of such semantics, I go right ahead and use this characterization anyway because its use, all by itself, enhances the important distinction between Common Law Jurisdiction and King's Equity Jurisdiction (which distinction is still very much in effect today), and makes this distinction much easier to understand; and additionally underscores the fact that the United States is stratified at Law into multiple jurisdictions to more tightly replicate the contours of Nature, and that the United States is not a single monolithic SLIPPERY SLOPE slab of equity Civil Law (hybridized old Roman Civil Law). As the American colonies severed relations at Law with the Mother Crown, the jurisdiction conferred upon the United States by our Fathers was largely similar, in a structural sense, to that jurisdiction the King of England already had. But the idea of characterizing the combined Executive and Legislative Branches of the United States as a "King" may not even be mine. Imagine fictionally in your mind having lunch with your Dad and a Federal Appellate Judge in New York City. During this imaginary and purely fictional conversation, while the non-existent Judge is speaking on a criminal doctrine, he mentions the existence of a contemporary "King" here today in the United States, as if it were a very natural idea to him. A year later, you realize that relating the jurisdictional contours of the United States to those contours which a King should have and not have, makes everything seem easy to understand. This is particularly so when relating a factual question of police powers limitation, or of a taxing limitation, to something tangible and natural like a King's expected jurisdictional contours. Additionally, a "King" also accurately reflects lingering English Jurisprudence here in the United States, and also reflects the present KING TO PRINCE satropic relational status of the United States Government to the several States, following the enactment of the AFTER TEN Amendments that shifted the RATIO DECIDENDI of power to Washington.

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Like Irwin Schiff here in late 1985, Armen Condo's reluctance in 1984 to get rid of his bank accounts forecloses a teachable state of mind one must have to understand multiple other invisible contracts that our King is dealing with, and that are more difficult to discern and appreciate the significance of. So if a PERSON, seeking a shift in relational Status to INDIVIDUAL, is unwilling to first get rid of his bank accounts, then talking to him about anything else is an improvident waste of time. [004]

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The word PERSON is of particular legal significance in American Jurisprudence; it is distinguished from the word INDIVIDUAL, with the semantic differential in effect between the two being inherently Status oriented. Although sounding innocent under common English semantic rules, on the floor of a Courtroom these semantic rules take upon themselves deeper significance, as it is quietly known by all Judges that PERSONS are clothed with multiple layers of juristic accoutrements giving that PERSON'S presence in that Courtroom a special and suggestive flavoring to it. On the one hand, PERSONS have special legal rights, benefits, and privileges originating from a juristic source; and on the other hand, PERSONS also carry upon themselves various obligatory duties (some of which, if not handled properly, can be very self-damaging at times) -- but both rights and duties are often invisible. In contrast to that layered state of juristic accoutrement encapsulation, INDIVIDUALS walk around without any such accoutrements [they would be "liberated" as the contemporary vernacular would characterize it]. As a point of beginning, PERSONS can be either natural human beings like you and me, or artificial juristic entities (such as foreign governments, Corporations, Agencies, or Instrumentalities) and the like -- at least, here in 1985, those are the only two existing divisions of PERSONS presently recognized by the Judiciary (i.e., human beings and paper juristic entities).

"Following many writers on jurisprudence, a juristic person may be defined as an entity that is subject to a right. There are good etymological grounds for such an inclusive neutral definition. The Latin "PERSONA" originally referred to DRAMATIS PERSONAE, and in Roman Law the term was adapted to refer to anything that could act on either side of a legal dispute... In effect, in Roman legal tradition, PERSONS are creations, artifacts, of the law itself, i.e., of the legislature that enacts the law, and are not considered to have, or only have incidentally, existence of any kind outside of the legal sphere. The law, on the Roman interpretation, is systematically ignorant of the biological status of its subjects."

- Peter French in THE CORPORATION AS A MORAL PERSON, 16 American Philosophical Quarterly 207, at 215 (1979).

But some time off in the future, the world will come to grips with the deeper meanings of Peter French's comments about how PERSONS ARE CREATIONS and how the law is ignorant OF THE BIOLOGICAL STATUS OF ITS SUBJECTS, because common knowledge will be changing one day as the recombinant DNA cellular cultivation technology perfected in the late 1970s in special basement laboratories designed into the CIA's Langley offices by Nelson Rockefeller blossoms out one day into the Commercial Sector, and genetic replicas of humans are brought forth into the public domain. It is my legal Prophesy that it is only a matter of time before a Court ruling or some slice of LEX makes its appearance somewhere, saying that the original natural born human being takes upon themselves full civil and criminal liability for all acts performed by their genetic replicas as soon as they emerge from the chemical tank, under the ALTER EGO ["second self"] DOCTRINE; and that those biological replicas (or SYNTHETIC ALTOMETONS, as the Bolsheviks would say) will also be deemed at that time to be PERSONS, fully layered with all of the same juristic accoutrements that their natural born human sponsor possesses [or would have possessed under similar circumstances]. The use of look alikes, or DOUBLES, has a very long history to them, particularly in dynastic settings where tremendous wealth is available for some looting; here in the United States of 1985, Bolshevik SYNTHETIC ALTOMETONS have already produced marvelous results for their sponsors, in both family dynasty and political settings involving important positions held in Juristic Institutions. When common public knowledge of this technology actually will blossom out into the open, I do not know. When the Apostle John was exiled to the Isle of Patmos, he once wrote a story on events he had seen in a vision; John talks about how someday the world's Gremlins, continuing to incorporate deception into their MODUS OPERANDI like they do, will make a big deal out of a man they will one day raise up for their purposes. Like the inflated, dramatic, and overzealous presentation of Henry Kissinger's intellectual credentials, this man will be shown on a much grander scale working great wonders going about the world ending one tough crisis after another, as the imp goes about his mischief trying to get folks to place trust and confidence in him (just like with Henry); and great political power and authority will be given to this imp. John describes a fellow who will bring down fire from Heaven, perform other great wonders, and then be fatally wounded. As part of the Gremlin deception show, this little imp will heal his own wounds and bring himself back from the dead. This little Gremlin won't actually heal his own wounds, as the world's news media will then want you to believe in furtherance of Gremlin conquests, but actually a DOUBLE will be brought forth that will have been previously manufactured, while the body of the mortally wounded and double-crossed imp will be quietly disposed of out the back door; and at the present time, excellent genetic DOUBLES are very feasible to manufacture. At the time the world's Gremlins pull off their impending MAGNUM OPUS theatrics [meaning "great act" theatrics], John tells us that they will succeed in deceiving many people. Few people have in-depth factual knowledge on Gremlin movements, and so few folks have trained themselves to be able to think in terms that Gremlins think in: Terms that involve deception, intrigue, and the use of doubles, murder, and whatever other CRACKING is necessary to get the job done. Like Tax Protestors never bothering to try and see things from the Judge's and the King's position, by folks never bothering to try and see things from the Gremlin perspective, the result is going to be exactly what John tells us: That many people will be held in awe of this little Gremlin, just like many people have already held Henry Kissinger in awe when they should have thrown him in the trash can, as the little Hitler the real Henry once was. As for bringing down fire from heaven and other MAGNUM OPUS appearances that John talks about, the holographic technology to create multiple colored images is now also highly developed. Using a confluence of monochromatic radiation sources (lasers), impressive visual images can now be created in an air reception media (just like in STAR WARS). The technically impressive show that the world's Gremlins will one day sponsor to try and impress people world wide -- THAT THEIR LITTLE IMP IS WORTH ADMIRING -- will actually have been rehearsed in a studio first, before being brought for on some world exhibition stage the Gremlins will create. [See the 13th chapter of REVELATION].

One of the dominate themes of this Letter is INDIVIDUAL RESPONSIBILITY, and correlative to that, it is my proposition that Gremlins can actually never succeed in forcing deception on others. The reason why is because deception has to be first created, then conveyed, and then accepted by others -- then only can deception succeed. Deception can only find fertility in a human mind to the extent that mind is receptive to it; similarly, in a sense, it actually takes two people to manufacture a successful lie: The first to utter the lie, and the second to accept it as such.

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That Letter was intended to be the private correspondence between two persons, or so I thought. Since no further dissemination of the Letter was expected, no detailed explanation of the factual setting otherwise relevant to the subject matter content of the Letter was made, nor was any detailed discussion of other limiting factors or peripheral elements of jural influence made. Both parties already knew key elements of the factual setting that gave rise to the Letter, and the subject matter I addressed was intended to be a narrow one, talking about bank accounts only as a point of beginning. For that reason, now the expansive factual application of that Letter to mean that a Person's contractual relationship with a Federally regulated financial institution was exclusively the only acceptable PRIMA FACIE Evidence [005]

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PRIMA FACIE EVIDENCE is Evidence that is good and sufficient on its face. PRIMA FACIE differs from CONCLUSIVE EVIDENCE in the sense that PRIMA FACIE EVIDENCE may be contradicted or attacked by other Evidence, whereas CONCLUSIVE EVIDENCE is not open to such an attack. If left unexplained or unchallenged, PRIME FACIE EVIDENCE is deemed to be of sufficient merit to sustain a judgment in favor of the issue at hand that it is supporting. Both PRIMA FACIE and CONCLUSIVE EVIDENCE are Evidentiary Rules involving the use of PRESUMPTIONS, which I will discuss later.

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-- or even CONCLUSIVE EVIDENCE -- of that Person's entry into the juristic highways of Interstate Commerce, is an erroneous and overly enlarged interpretation, and falls outside the contours of the two narrow questions that I thought I had addressed in that Letter:

1. What right does the King have to criminalize a conversation two people have, just because the content discussed in that conversation does not meet with the King's approval? (Relating to Mr. Condo's civilly denominated prosecution where the United States sought a Restraining Order silencing his YHPA ["Your Heritage Protection Association"];

2. What rights does the King have to incarcerate a Person for a mere circumstantial omission that is in want of both a MENS REA [006]

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The MENS REA is an evil state of mind that is necessarily inherent in all criminals as they knowingly go about their pre-planned work by intentionally damaging someone else.

"Criminal liability is normally based upon the concurrence of two factors, 'an evil-meaning mind and an evil-doing hand...' ...Few areas of criminal law pose more difficulty than the proper definition of the MENS REA required for any particular crime. [Extended discussion then follows defining what the MENS REA is and is not]."

- UNITED STATES VS. BAILEY, 444 U.S. 394, at 402 (1979)

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and a CORPUS DELECTI... [007]

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The CORPUS DELECTI is the hard evidentiary "body of the crime" that is supposed to exist on the record; it is related to DUE PROCESS in the sense that it ferrets out a unique form of error. Originated as a Common Law rule by judges in our old Mother England, the Britannic judiciary had been embarrassed by having consented to execute a man for murder, when the individual believed to have been murdered later returned to the village very much alive. As a corrective result, the judiciary then required that in all capital murder cases, the prosecuting Crown has the burden of adducing satisfactory evidence that the alleged victim is actually dead (separate from, and in addition to, other evidence that the accused is guilty.) Today, the CORPUS DELECTI rule is very much a correct PRINCIPLE OF NATURE for those criminal prosecutions falling under Tort Law indicia (where no contract governs the grievance); but it lies largely in slumber. It could be a test of the factual setting for the presence of hard damages on the criminal record, and as such would screen out illegitimate prosecutions where the Complainant never experienced any damages; but as our Father's Common Law has been replaced by contractual LEX, this rule has largely faded away into atrophy. Should it ever be resuscitated, perhaps in the form of mandating Criminal Arraignment Magistrates to document either a contract or the twin Tort indicia of MENS REA/CORPUS DELECTI on the record, as a condition for allowing the criminal prosecution to proceed on to Trial, such a procedural rule would automatically disable any Special Interest Group from succeeding in having their little penal Majoritarian LEX forced on others in violation of both the REPUBLICAN FORM OF GOVERNMENT CLAUSE of Article 4, and of PRINCIPLES OF NATURE that replicate the thinking of Heavenly Father. All Special Interest Groups sponsored penal LEX is always characterized by the absence of any contract or damages present in the factual setting that the defendant is being prosecuted for -- such as growing Marijuana in your backyard and gambling in your basement. There is a chilling story to be told some other time of the Special Interest Temperance sponsors of the Prohibition of the 1920's here in the United States and of their descendants, who today are heavily involved with drug smuggling, so called; as the criminalization of plants and plant derivatives that are in broad demand creates a FABULOUS Black Market to pursue Commercial enrichment in.

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the criminalization of a non-event that never happened? (Relating to Mr. Condo's 7203 WILLFUL FAILURE TO FILE prosecution).

You have me in such a position, Mr. May, that writing this response to you makes me feel like I am the United States Supreme Court, reaffirming a prior Opinion, yet turning around and writing voluminous explanative text discussing the implications to a slight twist to the factual setting. [008]

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In a limited cognitive sense, I am also sympathetic to the position Dr. Albert Einstein was in when he first disseminated his THEORY OF RELATIVITY in 1929 with qualifications, as he knew then that only a few people were in a position to come to grips with its contents:

"... his latest formal document -- the new "Field Theory" on the relations between gravitation and electromagnetism -- concerning which he himself declares it is absurd to waste time to try to elucidate it for the public because 'probably not more than a dozen or so men in the world could possibly understand it'."

- The NEW YORK TIMES ["Einstein Distracted by Public Curiosity; Seeks Hiding Place"], Page 1 (February 4, 1929).

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The narrow answers explaining why Mr. Condo was just plain wrong in both of those questions were discussed in that letter -- because in both questions, the United States had written Commercial contracts Armen Condo had entered into wherein Mr. Condo agreed not to disseminate any erroneous tax information, and additionally, where Mr. Condo agreed not to withhold or fail to file any information the Secretary of Treasury deemed necessary to determine Mr. Condo's Excise Tax Liability (with the amount of tax being measured by net taxable income). Those contracts the United States was operating on were Mr. Condo's bank accounts.

Furthermore, to aggravate the just plain "wrongness" of Mr. Condo's position, those contracts were entered into by Mr. Condo in the circumstantial context of Mr. Condo's attempting to experience monetary profit or gain through the operation of those contracts. In other words, there had been an exchange of financial Consideration (benefits) involved, and in Contract Law, the exchange of valuable Consideration (benefits) is of particular significance. [009]

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CONSIDERATION is technically defined to be either a benefit or a detriment -- meaning that some operation of NATURE out there in the practical setting took place.

"Under the common law of Missouri, Consideration sufficient to support a simple contract may consist either of a detriment to the Promisee, or a benefit to the Promisor."

- IN RE WINDLE, 653 F.2nd 328, at 331 (1981).

"The very essence of Consideration... is legal detriment that has been bargained for and exchanged for the promise... The two parties must have agreed and intended that the benefits each derived be the Consideration for a contract."

- JOSEPHINE HOFFA VS. FRANK FITZSIMMONS, 499 F.Supp. 357, at 365 (1980).

This CONSIDERATION DOCTRINE -- this requirement that there must first be a practical operation of NATURE prior to triggering the Law is very important, and applies across all factual settings, and not just on contracts, as I will explain by the end of this Letter. But for the purposes of this Letter, only the benefit slice of CONSIDERATION will be discussed.

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This Consideration requirement is a correct PRINCIPLE OF NATURE, [010]

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Yes, the requirement for CONSIDERATION originated in the Heavens, but not so to lawyers, who begin their analysis of the Law by starting off in the wrong direction when assuming that men created the Law. Just like collegiate intellectual's conjecture that the organic history of technological innovations is the result of accidents, so too do lawyers skew their perceptions off into factually defective tangents:

"Bargain consideration was invented for the sake of bilateral agreements and then was extended to unilateral agreements..."

- Hugh Willis in RATIONALE OF BARGAIN CONSIDERATION in 27 Georgetown Law Journal 414, at 415 (1939).

The author then continues on with his dribblings.

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because it is immoral and unethical to hold a contract against a Person under circumstances in which that Person never received any benefits from out of it. [011]

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See Charles Fried in CONTRACT AS PROMISE "Consideration" [Harvard University Press, Cambridge (1981)].

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It has to be this way, otherwise the Judicature of the United States would be working a Tort (damage) on someone else. So simply giving the other party some up front Consideration, which is generally $10 in cash, separately and in addition to any other benefit the contract may call for, will vitiate and deflect any attack against the future enforcement of that contract on the grounds the other party never experienced any benefit from it (the attack is called FAILURE OF CONSIDERATION). [012]

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For commentary in this area of CONSIDERATION, see:

- James Barr Ames in TWO THEORIES OF CONSIDERATION, 12 Harvard Law Review 515 (1899) [discussing the relationship between Consideration and both unilateral and bilateral contracts];

- Arthur Corbin in THE EFFECT OF OPTIONS ON CONSIDERATION, 34 Yale Law Journal 571 (1925);

- Arthur Corbin in NON-BINDING PROMISES AS CONSIDERATION, 26 Columbia Law Review 550 (1926);

- Joseph Beale in NOTES ON CONSIDERATION, 17 Harvard Law Review 71 (1903);

- Melvin Eisenberg in THE PRINCIPLES OF CONSIDERATION, 67 Cornell Law Review 640 (1982);

- Samuel Williston in SUCCESSIVE PROMISES OF THE SAME PERFORMANCE, 5 Harvard Law Review 27 (1894). Samuel Williston authored several tremendous books on contract law called:

1. WILLISTON ON CONTRACTS, [Baker & Voorhis, New York (1936-1945) 9 volumes];

2. CASES ON ENGINEERING CONTRACTS ("engineering" meaning "drafting" contracts), [Little Brown, Boston (1904)];

3. RESTATEMENT OF THE LAW ON CONTRACTS [American Law Institute, St. Paul (1932)].

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This Consideration [meaning some practical benefit being exchanged or some operation of Nature taking place] can also originate from third persons not a party to the contract. [013]

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"In most actions upon contracts, the Consideration 'moved' directly from the Plaintiff to the Defendant, either by way of a benefit conferred or a loss sustained, or both, and the promise sued upon was made by the Defendant directly to the Plaintiff. But occasionally the whole Consideration arises between the Defendant and some third person other than the Plaintiff, and the promise is made to such [third] person alone; and the question arises, 'Can any other person than the promisee maintain an action upon such promise, solely because he is beneficially interested in its performance?' Many cases seem to hold that he can. Is that a universal or general rule? Is not the general rule the other way? If A sends a package to B by an expressman and pays him double price upon his promise to deliver the article promptly, can B recover damages for the carrier's non-performance of that contract? ...A perfect, well-rounded contract requires not only a promise and a Consideration, but a participation by each party in both of these elements..."

- Edward Bennett in CONSIDERATIONS MOVING FROM THIRD PERSONS in 9 Harvard Law Review 233, at 233 (1895).

As we change settings from a common everyday Commercial arrangement where merchandise is being transported back and forth, over to a juristic setting involving contracts with Government, nothing changes either -- as Consideration is deemed to have been exchanged based upon an operation of indirect third persons not a party to the contract [as I will discuss under the CITIZENSHIP CONTRACT later on].

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The word CONSIDERATION has so many different meanings that anyone trying to use the word instructionally finds themselves starting over from scratch in the presentation of a definition. [014]

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"The term CONSIDERATION has been used in so many senses that anyone who employs it must define it for his own purposes anew. In using it as a title, I mean to include thereunder all acts or omissions on the part of anyone other than the promissor which, taken in connection with the promise, may be thought to afford a reason for granting a legal remedy upon its breach. So stated, the question whether Consideration exists in any given instance depends not on the character of the particular act relied upon as Consideration, but on its relation to the parties, to the promise, and to the particular remedy which is sought."

- George Gardner in AN INQUIRY INTO THE PRINCIPLES OF THE LAW OF CONTRACTS, 46 Harvard Law Review 1, at 9 (1932).

In the typical case of a simple business contract these relationships that Gardner was referring to appear to be complex at first (as George Gardner did not elucidate himself very well in that article), but they are based on very simple PRINCIPLES OF NATURE everyone can understand; and when understanding these Consideration rules, the indicia of Nature which creates invisible contracts will also surface and become apparent. For example, let's say that A promises to B that if B will ship him a farm reaper, then A will pay to B $500 ten days after it is shipped. Fine. B ships the reaper, thus bring the element of Consideration into the factual setting, and so now an invisible contract is formed: How? Since it was necessary to promise $500 as an inducement to B to ship the reaper, it is reasonably inferred that B experienced an outgoing DETRIMENT of something around $500. But as for A, he accepted a benefit (the reaper) that B first offered conditionally -- and when practical benefits were accepted by you that someone else offered conditionally (here, the benefit was conditioned upon receipt of $500 within ten days), then an invisible contract is in effect; and contracts do not now, and never did, have to be stated in writing in order to be enforceable by American Judges. [The reaper sale is explained in PORT HURON MACHINE COMPANY VS. WOHLERS, 207 Iowa 826 (1929)].

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Under some circumstances, successive Promises cascading down from existing contracts can be deemed to be good and valuable Consideration. [015]

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Even though no tangible CONSIDERATION changed hands when this successive contract was executed, the original contract did trigger an exchange of CONSIDERATION, an so in a sense, other successive future contracts could be deemed ADDENDUMS to the original contract, obtaining their life from the CONSIDERATION the parent contract experienced. See:

- C.C. Langdell in MUTUAL PROMISES AS A CONSIDERATION FOR EACH OTHER in 14 Harvard Law Review 496 (1900);

- Samuel Williston in SUCCESSIVE PROMISES OF THE SAME PERFORMANCE in 8 Harvard Law Review 27 (1894);

- Ballantine n MUTUALITY AND CONSIDERATION in 28 Harvard Law Review 121 (1914);

- OLIPHANT in MUTUALITY OF OBLIGATION IN BILATERAL CONTRACTS AT LAW in 25 Columbia Law Review 705 (1925);

- Samuel Williston in THE EFFECT OF ONE VOID PROMISE IN A BILATERAL AGREEMENT in 25 Columbia Law Review 857 (1925);

- Corbin in NON-BINDING PROMISES AS CONSIDERATION in 26 Columbia Law Review 550 (1926).

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Harnessing the element of FRAUD to inure to your benefit is powerful stuff in that it vitiates contracts whenever it makes an appearance in a factual setting predicated upon contract; [016]

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Fraud vitiates the juristic vitality and destroys the legal validity of everything that it enters into:

"Fraud destroys the validity of everything into which it enters. It affects fatally even the most solemn judgments and decrees."

- IRA NUDD VS. GEORGE BURROWS, 91 U.S. 426, at 440 (1875).

"There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments. There is no question that many rights originally founded in fraud become -- by lapse of time... no longer open to inquiry in the usual and ordinary method."

- UNITED STATES VS. SAM THROCKMORTON, 98 U.S. 61, at 64 (1878).

Notice how the lack of timeliness impairs one's ability to invoke this DOCTRINE OF FRAUD and successfully have contracts, documents, etc. annulled where fraud has surfaced as an element; and as we change arguments, the Principle of Timeliness (Laches) does not change, so the importance of handling FAILURE OF CONSIDERATION in a timely manner as a defense line will also surface as a key important judicial indicia in deciding whether or not to award a FAILURE OF CONSIDERATION judgment in your favor.

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and likewise, when contracts are up for review and judgment, the element of CONSIDERATION is also so important that the mere absence of it nullifies the judicial enforceability of any factual setting alleging the existence of contractual liabilities. As the PRESENCE of fraud vitiates contracts, so in a similar manner does the ABSENCE of Consideration nullify contracts. [017]

[017]=============================================================

In the early 1970's, a business called Erika Incorporated had been the recipient of a train of money originating from medical claims filed with University Hospital in Birmingham, Alabama for the Blue Cross "C-Plus" payment plan. Blue Cross had been sending the money to University Hospital, who in turn sent the money to Erika. But in the Summer of 1975, University Hospital decided to terminate relations with Erika, and so Blue Cross then started paying its subscribers directly for services rendered by Erika. Now Erika had to go through the nuisance of trying to collect money from some distant patients; this was an expensive procedure, and necessarily generated administrative headaches; and so now Erika tried to get set up with Blue Cross directly as a PROVIDER, now that University Hospital stopped paying Erika. In a preliminary attempt to get paid directly from Blue Cross, Erika presented some ASSIGNMENTS that its customers had signed, instructing Blue Cross to pay Erika directly, but Blue Cross erected some administrative impediments. Later, Erika then asked Blue Cross for a PROVIDER NUMBER to return to a relationship where they get paid directly from Blue Cross, but Blue Cross refused to issue out such a PROVIDER NUMBER. So in the Summer of 1975, numerous letters were going back and forth between the corporate management of Erika and Blue Cross. The letters seem to indicate that Blue Cross deemed that a PROVIDER NUMBER for Erika really was not necessary, and that special checks could be issued out to Erika in circumvention of house rules, but things never worked out for Erika. Circumstances came to pass later where Erika is unhappy over the loss of revenue, so Erika started an action in Federal District Court, now claiming that the letters from Blue Cross stating possible circumvention of PROVIDER NUMBER was an offer to a contract which Erika later accepted, and therefore a contract was in effect. The Federal Judge ruled that an exchange of letters is not a contract, and that all of the offers and acceptances stated in such letters means nothing -- since NO CONSIDERATION EVER CHANGED HANDS:

"Even if the exchange of letters can somehow be construed as containing essential elements of the agreement, no contract was formed because there was no Consideration. Consideration for a promise is an act, a forbearance, or the creation, modification or destruction of a legal relation, or a return promise, bargained for and given in exchange for the promise. [Remember that CONSIDERATION is a hard practical operation of Nature taking place.] ... In the instant case, there was no Consideration to Blue Cross from Erika for any promise made by Blue Cross. Although legal detriment to the promisee is a valid Consideration as a benefit to the promisor, ... that Consideration must be bargained for, and in the instant case there is no evidence that the action of Erika in submitting bills in the form and manner set forth by Blue Cross and refraining from sending such bills to Blue Cross' subscribers was in any way bargained for. The Court finds that the exchange of correspondence did not form a contractual obligation on the part of Blue Cross to pay the money directly to Erika."

- ERIKA, INC. VS. BLUE CROSS, 496 F.Supp. 786, at 788 (1980).

I simplified the factual setting on this Case, but the essential factual elements relating to the promises written on paper, without any correlative operation of Nature (CONSIDERATION) is largely accurate. Here in ERIKA, just like Tax Protestors throwing Temporary Restraining Order Petitions at a new Employer, one party lost no time barreling into Federal Court demanding some perceived rights. And as is very often the case, as happened here, a third party intervenes into the factual setting [here Blue Cross], and for reasons the complaining party had little control over, damages are being experienced. With Tax Protestors, the third party intervening into their factual setting by preemptively grabbing their earnings is the IRS. By the end of this Letter, you should see quite clearly that the Law now continues to operate out in the practical setting where it always has operated before recent technological developments like paper, pens, and the like, and even general public literacy, which surfaced generally as late as the 1300's to 1600's. The Law does not operate on paper [whenever the Law is based on NATURE]; what is written on paper is merely a STATEMENT OF THE LAW. Importantly, I hope you should see why.

=============================================================[017]

In general terms, both American Jurisprudence and Nature that it is modeled after are divided into actions that fall generally under Tort Law and Contract Law. [018]

[018]=============================================================

For a presentation of the history of the bifurcation of Law into Tort and Contract going back into 1200 A.D., see C.H.S. Fifoot in HISTORY AND SOURCES OF THE COMMON LAW, TORT AND CONTRACT; [Stevens and Sons, London (1949)].

=============================================================[018]

Numerous references will be made throughout this Letter to the two great divisions in American Jurisprudence: TORT LAW and CONTRACT LAW. Very simply, Contract Law applies to govern a settlement of a grievance whenever a contract is in effect. This means that only certain types of very narrow arguments are allowed to be plead in Contract Law grievances, since only the content of the contract is of any relevance in the grievance settlement. The reason why statutes are sometimes brought into a Contract Law judgment setting, statutes that do not appear anywhere within the body proper of the contract, is because the contract was written under the supervisory Commerce Jurisdiction of the State, and that therefore those statutes form a superseding part of the contract. [019]

[019]=============================================================

Before 1933, it was common practice in the United States for various contracts to contain covenants stating that a sum set certain would be paid in Gold Coin, and so these special covenants were then called GOLD CLAUSES. They would read something to the effect that "... will pay (amount) dollars in gold coin of the United States of the standard weight and fineness existing on (date of contract)..." In this way, creditors protected themselves from losses due to Government creating a monetary change in currency value. When a Joint Resolution of Congress in June of 1933 [31 U.S.C. 463] explicitly abrogated the judicial enforcement of these GOLD CLAUSES in Commercial contracts, there was the usual Patriot howling, claiming that worn out Patriot argument of UNCONSTITUTIONALITY; some lingering residues of which continue on down to the present time. However, long ago in the early 1800's, an American jurist with great foresight, who understood the correct relational status in effect between COMMERCIAL contracts and the Constitution, had a few words to say about this state of affairs:

"Nay, if the legislature should pass a law declaring, that all future contracts might be discharged by a tender of any thing, or things, besides gold and silver, there would be a great difficulty in affirming them to be unconstitutional; since it would become part of the stipulations of the contract."

- Joseph Story in III COMMENTARY ON THE CONSTITUTION at 248 ["Prohibitions - Contracts"] (Cambridge, 1833).

By the end of this Letter, you too should see why COMMERCIAL contracts are born, live and then die, in their own strata, without the Constitution offering any significant restrainment on Legislative intervention. See generally:

- THE GOLD CLAUSES, 294 U.S. 240 (1934);

- Barry, GOLD, 20 Virginia Law Review 263 (1934);

- Phanor Eder, THE GOLD CLAUSE CASES IN THE LIGHT OF HISTORY, 23 George Washington Law Review [Part 1 at Page 369 (Basic concepts of money); and Part 2 starts at Page 722 ("Debasement, Devaluation and Depreciation")] (1934);

- Russell Post and Charles Willard, THE POWER OF THE CONGRESS TO NULLIFY GOLD CLAUSES, 46 Harvard Law Review 1225 (1933); and others mentioned elsewhere in this Letter.

Although it seems momentarily pleasing to ventilate Patriot frustrations by throwing invectives at the spineless Congress for their successive continuum of enacting Rockefeller Special Interest Group legislation with the national damages created secondarily in their wake, by the end of this Letter, the true remedy will be found lying within yourself.

=============================================================[019]

There are many subdivisions within Contract Law, such as Securities Law, Estate Inheritance, Quasi-Contract, [020]

[020]=============================================================

Quasi-contracts are just contracts. Sir Henry Maine showed the use of the adjunct QUASI in such Roman expressions as quasi-contract (quasi ex contractu), but it is just an assignment of superfluous terminology. See a review of William Keeton's book called QUASI-CONTRACTS by Everett Abbott in 10 Harvard Law Review 209 (1896).

=============================================================[020]

Statutory Contract, Taxes, Copyright and Trademark Infringement Law, Commercial Business Practice under either the Law Merchant or the Uniform Commercial Code, Insurance, Admiralty and Maritime Contracts, etc. Operating a business under a regulated statutory juristic environment is very much a contract, since a numerous array of Government benefits are being accepted by Gameplayers in Commerce, as I will discuss later.

And in contrast to that, we have Tort Law. Think of Tort Law as being a Judgment Law to settle grievances between persons where there are damages, but without any contract in effect between the parties. [021]

[021]=============================================================

"A tort is a breach of duty (other than contractual duty) which gives rise to an action for damages. That is, obviously, a merely procedural definition, of no value to the layman. The latter wants to know the nature of those breaches of duty which give rise to an action for damages. To put it briefly, there is no English Law of Tort; there is merely an English Law of Torts, i.e., a list of acts and omissions which, in certain conditions, are actionable. Any attempt to generalize further, however interesting from a speculative standpoint, would be profoundly unsafe as a practical guide."

- Miles, DIGEST OF ENGLISH CIVIL LAW, Book II, Page xiv (1910).

This pitiful line of reasoning and of poorly presented facts without any guidance Principles, is what collegiate law students are taught, so we should not be too surprised to start uncovering damages that lawyers have done to our Father's Law.

=============================================================[021]

A good contrasting way to define a Tort is by enumerating on the things that it is not: It is not a breach of contract. Included under the heading of Torts are such miscellaneous civil wrongs, ranging from simple and direct interferences against a person like assault, battery, and false imprisonment; or with some property rights, like trespass or conversion; and various forms of negligence are Torts ("judge, the defendant was negligent in maintaining his parking lot by not fixing a dangerous and obscure crevice that was in it") -- but the final definition is a simple one: Any wrong that has been worked by someone, where there is no contract in effect, falls under Tort Law when the damaged person brings the grievance into Court and tries to seek a judicial remedy. [022]

[022]=============================================================

"...it is a distinguishing characteristic of Torts that the duties from the violation of which they result are creatures of the law and not of peculiar agreements. As contractual duties properly have their origin in, and derive their vitality from, the assent of the parties, a breach of such duties only does not constitute a Tort."

- 62 CORPUS JURIS 1091, at 1092, Section 2. [See also 86 CORPUS JURIS SECUNDUM under "Torts -- Definition, Distinctions, and History"; 86 CORPUS JURIS SECUNDUM, Section 2 also discusses "Torts -- Distinction From, and Relation To, Contract"].

=============================================================[022]

Such an easy concept to understand as that, with parallel easy to understand rules and judgment reasoning -- and lawyers are actually baffled by it. [023]

[023]=============================================================

And they have been poorly writing cases, statutes and memoranda for a very long time:

"The law of Edward I's reign draws no clear line between tort and contract."

- Sir William Holdsworth in Volume II, A HISTORY OF ENGLISH LAW, at 369 [London (1936); 18 Volumes].

But they should not have been baffled; back in the early English days of King Henry, strategies for bringing actions into court under either Tort or Contract was being fluently discussed back then:

"[While discussing the beginnings of ASSUMPSIT (ASSUMPSIT was a court action to recover from breach of contract on simple unwritten contracts)] ...The King's Court was not very fond of contract, but it showed some interest in tort, and it is in the action of trespass that the quickest progress was made. ...The debate [back in the 1300's] makes it clear that all parties recognized that the situation was fundamentally contractual, and that it was being forced into the form of tort simply because the action of covenant could be brought only upon deed upon seal. In this particular instance, the contrast with trespass is well made, and the case is left, procedurally, at least, as a case of negligent damage to a chattel. But it must not be imagined that this is the story of the slow dawn of the idea of contract in the minds of common lawyers. They knew quite well [back then] what a covenant was, but they deliberately resorted to juggling with [the tort of] trespass because they felt unable to sustain an action of covenant without a deed."

- Theodore Pluckett in HISTORY OF THE COMMON LAW, Page 637 [Little Brown Publishers, Boston (1956); 5th Edition].

Today in 1985, lawyers will still juggle their arguments around, trying to find the most advantageous position for their client; and so applicability of Tort Law or Contract Law is still being argued down to the present day.

=============================================================[023]

Similarly, orthodox medical doctors here in the United States are also blind, by replicating the advisory suggestions of drug companies pursuing Commercial Enrichment, to exclude the identification of simple nourishment deficiency as the true seminal point of mammalian disease origin. Against that sad background (of professionals not even knowing their own profession), [024]

[024]=============================================================

Even prominent American jurists have had difficulty coming to grips with the simple ideas of Tort and Contract:

"But it must be remembered that the distinction between tort and breaches of contract, and especially between the remedies for the two, is not found ready made. It is conceivable that a procedure adapted to redress for violence was extended to other cases as they arose."

- Oliver W. Holmes in THE COMMON LAW, at 13 [Little Brown, Boston (1881)].

=============================================================[024]

the actual identification of Tort Law as an actual branch of the Majestic Oak is a relatively recent recognition by American lawyers. Up until about 1859, Tort Law was not understood as a separate and distinct branch of Law. [025]

[025]=============================================================

"The definition of a tort may be said to have baffled the text-book writers not so much on account of the inherent difficulty of the conception as because of the implication of the conception in questions of jurisdiction. ...Perhaps none of the text-books succeeds in introducing all of these limitations into its definition."

- Lee, TORTS AND DELICTS, 27 Yale Law Journal 721, at 723 (1918).

=============================================================[025]

The first treatise in ENGLISH ON TORTS was published in 1859 by Francis Hilliard of Cambridge, Massachusetts, who was followed a year later by an English author named Addison. [026]

[026]=============================================================

For a discussion of the recent recognition of Tort Law by lawyers, see generally, PROSSER AND KEETON ON TORTS, Page 1 [West Publishing (1984)]. By the time you have finished this Letter, you will see that Tort Law has been in effect long before this World ever came into existence, and long before para-legals masquerading as professionals created a privately shared monopoly, the Bar Association, in which to artificially limit new entrants and quietly pursue enhanced Commercial self-enrichment. The fact that Tort Law has only recently been recognized in American Jurisprudence since the late 1800's does not mean that Tort Law did not exist prior to such recognition -- it only means that lawyers were groping in the dark back then [and not that things have really changed that much].

=============================================================[026]

Even as late as 1871, the leading American legal periodical remarked that:

"We are inclined to think that Torts is not a proper subject for a law book." [027]

[027]=============================================================

5 AMERICAN LAW REVIEW 341 (1871). [Violating a premier PRINCIPLE OF NATURE with the baneful and stupid conclusion that factual ignorance is beneficial to you.]

=============================================================[027]

In 1853, when Mr. Joel Bishop proposed to write a book on the Law of Torts, he was assured then by all publishers he surveyed that there was no such call for such a work on that subject. [028]

[028]=============================================================

Mr. Bishop was told that:

"... if the book were written by the most eminent and prominent author that ever lived, not a dozen copies a year would be sold."

- Joel Bishop in NON-CONTRACT LAW, Page 2 (1889).

=============================================================[028]

Yet, the distinction in effect between Tort Law and Contract Law was in effect during the Roman Empire. [029]

[029]=============================================================

See ROMAN LAW AND COMMON LAW, at Page 18, by W.W. Buckland [Cambridge University Press (1936)].

=============================================================[029]

But in addressing Tort Law itself, if I were to hit you over the head with a baseball bat or burn down your house, there is no contract in effect governing the grievance, so Tort Law rules, reasoning, and arguments govern the settlement of this type of grievance. In addition to damages, judges always want to examine the factual record presented to analyze the Defendant's character, and make sure that the intent to damage was there (as consent and accidental damages can vitiate liability). [030]

[030]=============================================================

This means that if you had asked me to burn down your house, you would be unsuccessful if you later tried to sue me for Tort damages -- because you had CONSENTED. As for bringing down a baseball bat on you, what we have here is an assault, and it is necessary to argue CONSENT when assault is alleged. However, the STATE OF MIND of the actor in assault Tort proceedings is of interest to judges for other deeper reasons [because the STATE OF MIND is a behavioral point of beginning and leads to other things]:

"As to assault, this is, perhaps, one of the kind in which the insult is more to be considered than the actual damages, though no great bodily pain is suffered by a blow on the palm of the hand, or the skirt of the coat, yet these are clearly within the legal definition of assault and battery, and among gentlemen too often induce duelling and terminate in murder."

- RESPUBLICA VS. DELONGCHAMPS, 1 Dallas 111, at 114 (1784).

=============================================================[030]

And so hitting someone over the head with a baseball bat is called an "assault," and there lies a Tort; however, there are many types of Torts that do not have any names assigned to them. [031]

[031]=============================================================

Smith, TORTS WITHOUT PARTICULAR NAMES, 69 University of Pennsylvania Law Review 91 (1921).

=============================================================[031]

Some writers have attempted to uncover certain characteristics that lie in common to all Torts as a starting point to identify some Principles (yes, there may be some hope for a few of you lawyers after all). [032]

[032]=============================================================

See writers like:

- Radin in A SPECULATIVE INQUIRY IN THE NATURE OF TORTS, 21 Texas Law Review 697 (1943);

- Stone in TOUCHSTONES OF TORT LIABILITY, 2 Stanford Law Review 259 (1950);

- Seavey in COGNITIONS ON TORT (1954)

=============================================================[032]

One of the reasons why lawyers try and raise numerous subclassifications of Tort up to the main level of Tort and Contract (as they grope and search in the dark the way they do), is because they do not see the invisible contracts that are often quietly in effect, correctly overruling Tort Law intervention, since an examination of the factual setting seems void of any contract. By the end of this Letter, you will see many invisible contracts for what they really are, and you will see how to identify the indicia that create invisible contracts.

You may not understand the deeper significance of the distinction in effect between Tort and Contract right now, but after reading this Letter through a few times, the semantic differential in meaning should become very apparent to you, as I will give many examples of Contract Law and Tort Law reasonings and arguments, as applied across many different factual settings; as whenever there is a judgment of some type, there is always in effect some rules and an exclusion of some evidence in the mind of the judge a to what arguments will and will not be allowed to be heard -- (even though this process goes on unmentioned orally by the judge); and the real reason why there is an important significance here that you might be interested in taking PERSONAL NOTICE of [just like Judges take JUDICIAL NOTICE of special items], in Tort and Contract rule differentials in judgment settings, is because we all have an impending Judgment with Heavenly Father -- where arguments then presented will be judged under similar Tort and Contract rules; a judgment setting where the pure magnitude of the consequences renders unprepared incorrect reasoning injudicious and lacking in foresight.

Like in Contract Law, there are numerous subdivisions within Tort Law to place a specific grievance into, such as: Civil Rights, Wrongful Death, Product Liability, Aviation Law, Personal Injury, Accident Recovery, Professional Malpractice, Unfair Competition, Admiralty and Maritime Torts, and certain Fraud and Anti-Trust actions, etc.

[033]=============================================================

See:

- Section 2, subsection 3, by Salmond, LAW ON TORTS, 7th Edition (1928);

- Goodhart, THE FOUNDATION OF TORTIOUS LIABILITY, 2 Modern Law Review 1 (1938);

- Williams, THE FOUNDATION OF TORTIOUS LIABILITY, 7 Cambridge Law Journal 111 (1938);

- James, TORT LAW IN MIDSTREAM: ITS CHALLENGE TO THE JUDICIAL PROCESS, 8 Buffalo Law Review 315 (1959).

=============================================================[033]

Based on the Status of the person involved and certain elements in the factual setting, and certain types of damages asked for, then what grievance normally would be under Contract Law, could be changed to fall under Tort Law.

So there is the general distinction in effect between Tort and Contract. Question: What if a grievance falls into an area of grey where it could fall under rules applicable to either Tort of Contract? Although my introductory remarks in this Letter are necessarily simplified, numerous commentators have mentioned that defining the line between Tort and Contract is sometimes difficult. [034]

[034]=============================================================

"Never did a Name so obstruct a true understanding of the Thing. To such a plight has it brought us that a favorite mode of defining a Tort is to declare merely that it is not a Contract. As if a man were to define Chemistry by pointing out that it is not Physics or Mathematics."

- Wigmore, SELECT CASES ON THE LAW OF TORTS, page vii (1912).

=============================================================[034]

However, what is important is the reason why a simple distinction became difficult: Because the parties to what started out as a Contract Law grievance did not fully anticipate all future events that could have occurred between the parties in contract. [035]

[035]=============================================================

For example:

"If I employ a piano tuner to tune my piano and he does it badly, in fact does not really tune it, I have a claim for recovery of what I may have paid, and for damages for breach of contract, and I can resist action on the contract if I have not paid. But there is no question of tort: The duty broken was created by the contract. If, however, he not only fails to tune the piano, but in the course of his operations breaks some of the hammers, the case is altered. If he breaks the hammers negligently, I can sue him for the damage either in contract or in tort; if intentionally, then I can sue him in tort or (probably) in contract."

- W.W. Buckland in ROMAN LAW AND COMMON LAW, ["Tort and Contract"] at page 273 [Cambridge University Press (1936)].

=============================================================[035]

Typically, all blurry factual settings that involve an area between Tort and Contract have their seminal point of origin in a Contract that did not completely define what would and would not happen under all possible scenarios; and this is called INCOMPLETE CONTRACTING. [036]

[036]=============================================================

In response to grievances arising out of fractured and insufficient contracts, judges sometimes create legal fictions to deal with these voids that the particular contracts were silent on; such fictions are the DOCTRINE OF IMPLIED CONDITIONS and the DOCTRINE OF PRESUMED INTENT [see Farnsworth in DISPUTES OVER OMISSION IN CONTRACT, 68 Columbia Law Review 860 (1968)]. Since the contract does not specify rights and duties, a limited slice of Tort Law reasoning enters into the Court's judgment, and so now Tort questions of FAIRNESS are then entertained by the Judge, under these special limited circumstances (but remember, Judges are merely filling voids that were left unsaid by the contract -- so there is no derogation of our Father's Law when such limited slices Tort are allowed to intervene into what started out as a Contract Law grievance).

In other cases, sometimes there are unallocated benefits or losses coming out of contracts, because quite frequently the contract did not provide for them [see Schwartz in SALES LAW AND INFLATION, 50 Southern California Law Review 1, at 8 to 10 (1976), discussing that if the parties have assumed the risk of inflation within certain boundaries, then the consequences of inflation experienced outside the specified boundaries of the contract is to be distributed pursuant to the FAIRNESS of judicial discretion]. Since the contract is silent on the effect of high inflation occurring outside of its boundaries, Tort Law reasoning of fairness and unfairness is then allowed to properly enter into the picture for this limited reason. Another area of Tort Law reasoning making its appearance to fill areas of voids in contracts comes when contract grievances are brought into Courts arguing that the UNIFORM COMMERCIAL CODE Section 2-615 now allows them to weasel out of their contract for some reason [see Hurst in FREEDOM OF CONTRACT IN AN UNSTABLE ECONOMY: JUDICIAL REALLOCATION OF CONTRACTUAL RISKS UNDER UCC 2-615 in 54 North Carolina Law Review 545 (1976)]. UCC Section 2-615 ["Excuse By Failure of Presupported Conditions"] allows parties in contracts to try and weasel their way out of the contract because some excusable circumstances came to pass; when such a contract termination is presented before a Judge, factors considered in the Judge's mind also center largely around Tort Law arguments of fairness -- but only because the contract is silent, and where contracts are silent, Contract Law yields to Tort Law arguments of fairness and unfairness [see FAIRNESS AND UTILITY IN TORT THEORY by George Fletcher, 85 Harvard Law Review 537 (1972)].

=============================================================[036]

Once a determination has been made that Tort or Contract governs the question presented, very important differences and rules then apply to settling claims and grievances based on the factual setting falling under Principles governing Tort Law, or under Principles governing Contract Law; and as you can surmise, the question as to whether or not a grievance belongs under Tort or under Contract is often a disputed and hotly argued question between adversaries in a courtroom battle, as the question as to which Law governs can spell total success or total failure for the parties involved. For example, see BUTLER VS. PITTWAY CORPORATION, [037]

[037]=============================================================

770 F.2nd 7 (1985).

=============================================================[037]

where to adversaries argued Tort Law or Contract Law governance in a pre-Trial appeal, which was a product liability/warranty case. [038]

[038]=============================================================

Meaning that some merchandise was first purchased under contract, and then evidence of a manufacturing defect surfaced later on, so now Tort Law claims were thrown back at the manufacturer (claims for damages can be enlarged under Tort Law, since Tort Law is a free-wheeling jurisdiction; claims for damages under Contract Law are restricted to the content of the contract, as in BREACH OF CONTRACT).

=============================================================[038]

In deciding whether to allow Tort or Contract Law to govern, the Second Circuit mentioned that:

"This case falls into a grey area between tort and contract law that has never been fully resolved." [039]

[039]=============================================================

BUTLER VS. PITTWAY CORPORATION, id., at 9.

=============================================================[039]

So, for the introductory purposes of this Letter, I will only be discussing the differences between Tort Law and Contract Law in general. [040]

[040]=============================================================

Other summary articles discussing the necessary distinctions in effect between Tort and Contract are:

- THE PAST OF PROMISE by E.A. Farnsworth, 69 Columbia Law Review 576;

- CONTRACT DAMAGES by W.R. Purdue, 46 Yale Law Journal 52 to 96 (1936-37).

=============================================================[040]

This stratification of the Law into two separate jurisdictions of Tort and Contract is quite necessary, and in so doing, the Judiciary is no more than conforming the contours of American Jurisprudence to more tightly replicate the profile of Nature; and as you will soon see there will be very profound consequences experienced by folks who try to outfox Nature by using Tort Law reasoning in a Contract Law judgment setting. You should also be aware that very often, we all occasionally get ourselves into contracts that become invisible for any number of reasons, and then erroneously use the logic of Tort Law reasoning to try and weasel our way out of the contract we forgot about.

Experientially well seasoned contractualists know that the desires and wants of people routinely change with the passage of time, and that it is quite common that contracts that are entered into today are often unattractive and unappealing in the hindsight of the future. So this Consideration rule is of particular importance in those types of marginal contracts where the benefit a Person experiences from the contract depends upon some future efforts that same Person must make, or where the benefits are qualified or otherwise conditional. For our purposes, correctly understood, Consideration is a benefit. Comprehension of the significance of Consideration is fundamental to one's understanding as to why the Judiciary is largely ignoring the IN REM CONTRACT RECESSIONS many folks are filing on their Birth Certificates; and understanding Consideration (the acceptance of benefits) is the Grand Key to unlocking the mystery as to why some of the King's Equity hooks are so difficult to pull o