OPCA Legal Maxims - a Critical Evaluation

[Hilfskreuzer Möwe]

So I have a modest proposal which I hope may also interest other contributors. Here in Canada our OPCA litigants have a fixation on “legal maxims” or “maxims of law”. I think that may be a consequence of Robert Menard, since he referenced these extensively in the early days of the Freeman-on-the-Land movement and even published his own collections of these. In any case, “maxims of law” are often cited in OPCA materials as absolute rules or principles that trump everything else.

Except that a lot of them are crap.

A neat dissection of that is found in A.N.B. v. Hancock, 2013 ABQB 97 (http://canlii.ca/t/fwx39) where a Freeman-on-the-Land argued he owned his children and cited a legal maxim. Rooke A.C.J. has this to say.

[60] As a preliminary observation, A.N.B. does not seem to explain why he, as a biological parent, has the sole authority and custody of his children, other than what appears to be a quoted Latin phrase in his Statement of Claim:

Partus sequitur ventrem. – The offspring follow the condition of the mother. This is the case of slaves and animals, but with regard to freemen, children follow the condition of the father. ~ 1 Bouv. Inst. N. 167,502;

[61] As I was unfamiliar with this principal I investigated, and learned that this is a concept of Roman civil law that related to the definition of slavery, and was applied in the United States as a basis for slave‑owners to impregnate their female slaves then sell their own children as property: Thomas D. Morris, Southern Slavery and the Law, 1619‑1860 (Studies in Legal History) (Chapel Hill: University of North Carolina Press, 1999), at pp. 43-52. Needless to say, this is not the law in Canada. Here, male and female parents have equal rights and obligations in relation to their children.

[62] The “partus sequitur ventrem” definition is what OPCA gurus and litigants refer to as a “legal maxim”, and these legal maxims are often sprinkled throughout OPCA documents and arguments. Most legal maxims are a succinct restatement of some legal rule or concept, and historically have been collected as guiding principles of legal systems, for example in Francis Bacon’s 1630 text, Collection of Some Principal Rules and Maxims of the Common Law, and John Bouvier, Bouvier’s Law Dictionary and Concise Encyclopedia, published in 1856.

[63] Some legal maxims remain relevant in the modern context, for example the maxim that “those seeking equity must come with clean hands”: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), 2006 SCC 52, at para. 22, 2006 SCC 52 (CanLII), [2006] 2 SCR 612. Others, like “partus sequitur ventrum” are either obsolete, irrelevant, or as in this case, obnoxious. These are not magic incantations that, when invoked, will automatically trigger results, though unfortunately that is a common approach by which these traditional principles of law are misused in the OPCA context.

After reading Dean’s latest missive, which cites various legal maxims, I thought – maybe it wouldn’t be such a bad idea to identify the popular legal maxims that circulate in the Canadian sovereign/freeman world, and see if they actually are ever used by Canadian courts. Yes, this is an excuse for me to make CanLII searches. My methodology is to initially search with the cited maxim, then for key words in any sentence, then for the key words in any paragraph. Finally, I do a 'Google' search with the exact language to see if anyone else has ever used that maxim, and if so, whom.

So, starting with Dean’s Statement of Claim in Federal Court (see viewtopic.php?f=48&t=9364&start=300#p169941))

Para. 20:

“Maxim of Law: “A judicial writ fails not through defect of form.”

Never cited in any CanLII database judgment. A ‘Google’ search does indicate this statement is found in a number of US legal texts, dating from 1888, 1860, and Black’s Law, 2nd edition.

Status – not recognized by Canadian courts.

Para. 21:

”Maxim of Law: “Equity favours substance over form.”

Never cited in any CanLII database judgment. A ‘Google’ search indicates the only time that exact phrase is used online is on Dean Clifford’s own website, however the related phrase “Equity favors substance over form” appears in quite a bit of legal material, including US judgments.

Status – not recognized by Canadian courts, however at least logically related to the scheme of equity law.

”Maxim of Law: “Ignorance excuses no one.”

Never cited in any CanLII database judgment, but the principle “Ignorance of the law excuses no one” is well recognized. That, however, is not the same as this alleged legal maxim, since a lack of knowledge is well recognized as a basis for absence of intent, whether a duty of care does or does not exist, and so on.

Status – not recognized by Canadian courts and legally incorrect.

Para. 31:

Maxim of Law: “The Law of God and the law of the land are all one.”

Never cited in any CanLII database judgment. A ‘Google’ search indicates this was said in 1519 by a Britsh Chief Justice (http://en.wikipedia.org/wiki/Law_of_the_land), and this maxim appears in US legal texts dating from 1883, 1848.

Status – not recognized by Canadian courts and legally incorrect: O’Sullivan v. Canada (No. 2), (1991), 45 F.T.R. 284, 84 D.L.R. (4th) 124 (F.C.T.D.); Meads v. Meads, 2012 ABQB 571 at paras. 276-285.

Para. 32:

Maxim of Law: “The law feigns where equity subsists.”

Never cited in any CanLII database judgment. A ‘Google’ search indicates this maxim appears in many old US legal texts, dated 1880, 1824, 1848, 1878. None explain what it means, so who knows whether this is a thematically valid maxim or not.

Status – not recognized by Canadian courts.

Para. 33:

Maxim of Law: “An action is not given to one who has not been injured.”

Never cited in any CanLII database judgment. A ‘Google’ search does not indicate a single instance, anywhere, for this maxim. I believe the only logical conclusion is Dean made this one up. It is also incorrect in law as "injury" is not a necessary basis to enforce a contract term, or an action based on a right established by legislation, and so on. However, a person who is injured does have a general right to access the courts for a remedy: Brotherhood of Maintenance of Way Employees v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495, 136 D.L.R. (4th) 289

Status – not recognized by Canadian courts, or anyone. Legally incorrect.

Para. 34:

Maxim of Law: “Deceit and fraud should always be remedied.”

Never cited in any CanLII database judgment. A ‘Google' search locates this maxim in US legal texts dating from 1880, 1865, 1878, and a modern (2009) Indian law dictionary.

Status – not recognized by Canadian courts, but consistent with the concept that transactions based in fraud may be unwound.

Para. 35:

Maxim of Law: “Justice is neither to be denied or delayed.”

Never cited in any CanLII database judgment, though a somewhat thematically related statement, “justice delayed is justice denied” is trite law. A ‘Google’ search turns up this exact maxim only in a single 1878 US Law text, and in Volume 1 of the “Northumberland County Legal News”, published 1888. Never appears anywhere else.

Status – not recognized by Canadian courts.

In conclusion, Dean’s source legal authorities in this document are obsolete, wrong, and without question not considered authoritative by Canadian courts.

SMS Möwe

[Burnaby49]

In the few Freeman cases that I've attended at court the plaintiffs seem to prefer vague maxims of law to actual law. Charles Norman Holmes was big on the one that nobody could act against him at trial because, as our legal eagle Dean says,

Maxim of Law: “An action is not given to one who has not been injured.”

So, to Charles, this meant that the crown counsel couldn't act against him because he had not personally injured them. Unfortunately the court didn't even bother to respond to this argument.

None of the plaintiffs (and, in the Nanaimo Three trial, defendants) cited any actual law to support their positions. They just spouted vague rules of law they'd dredged up from somewhere and acted as if as if these were a definitive defense of their position. I seem to recall the Chief doing the same thing at the seminar I attended. Certainly the Chief's "notarized" documents are stuffed with maxims of law rather than citation of actual statutory law.

I think they rely on maxims of law for a number of reasons. Firstly their positions aren't supported by real law so they try and claim some vague fairness standard based on maxims. Secondly they just don't understand real law. Dean Clifford, supposedly one of the most knowledgeable Freemen in Canada, has shown he doesn't have a clue. Taking his case to what is clearly the wrong court is just sad.

For a while the Chief had a thing going where he would notarize documents for individuals claiming that they had been poisoned by ground glass in their drink at Vancouver area restaurants. The Sandbar, a popular place at Granville Island was a favorite. I have a set of the documents sent to the Sandbar in respect to one attempt. The usual foisted unilateral agreement where they had to respond PDQ or, by default, they owed the poor suffering patron piles of money with no recourse to the courts. Apparently (at least according to the documents) plaintiffs can impose estoppel on a defendant's right to actually, you know, defend himself. I have to admit this saves everybody the trouble of actually going to court.

Rather than citing the actual law of tort (I assume this is a tort) in support of their demands they would cough up pages of Maxims of Law. In one demand for $10,000,000 over a claimed sore tummy their case was based on the following legal positions;

He who creates the liability must bring the remedy

He who consents cannot receive an injury

The contract makes the law

He who approves cannot reject

He who is silent appears to consent

Agreements give the law to the contract

A contract founded on a base and unlawful consideration, or against good morals, is null.

And on and on. I think a touch vague to actually serve as basis of claim.

As an aside the plaintiffs were very economical in setting up the basis of their claim. They needed a receipt from the Sandbar to show that they'd actually consumed something on the premises. However, why pay for an entire meal when a drink will do? So, in the case I've read, they went to the bar, had one drink, claimed they had been poisoned, made a fuss so people would remember, then trotted out the Chief's notarized documents.

[grixit]

Were any of these people sanctioned? As if so how did the Rockem Sockem robot explain that?

[Burnaby49]

Were any of these people sanctioned? As if so how did the Rockem Sockem robot explain that?

No, for two reason. None went to court and we don't have sanctions, just costs. The documentation demanding money was just bluster; as far as I can see there was no intent to actually sue, just a hope that all this gibberish actually meant something and would scare defendants into settling. It's hard to believe that somebody would submit all this crap as a basis of claim. All I can think is that is so complex, dense, and jargon filled that the plaintiffs were awed that there must be something in it. However going to court requires actual proof of damages and evidence that the ground glass actually existed. There were two claimants. The stament of fact for the first said;

6. Affiant ordered drinks from the Bar and the order that was placed with the Bar was brought not long after.

7. Affiant had a couple drinks (sic) of affiant's refreshment, affiant became aware of some hard objects in affiants (sic) mouth after chewing on objects affiant thought to be ice, chipped a bit of affiants (sic) tooth from the hard object and had swallowed these objects during (sic).

A couple of notes here.
1 - No more (sic), you get the idea.
2 - I think point 7 would cause affiant some problem in court since ice floats and glass doesn't so even a child knows that if there is something at the bottom of the glass it is not ice.

8. Affiant became aware that objects were not ice and proceeded to clean the objects out of affiant's mouth to learn that the ice was glass from the cup that had chipped into the drink.

9. After the shock and fear of the fact that the affiant believed to have swallowed glass, affiant had warned the other parties of this fact and bartender was given notice immediately.

10. Affiant had taken two hours of affiant's time to diligently clean out all the pieces of glass out of the affiant's mouth.

11. Affaint made note of the following day's bowel movement, which had been observed to have a shade of dark blood in the feces, and some pain in the bowel movement.

12. Affiant also made observations of the uncomfortable feeling affiant felt in the upper left side of the abdominal area.

13. Affiant still feels affected by the shock and believes there is irreversible mental anguish that has been sustained during the events at the Sandbar Seafood Restaurant on Granville Island.

The second statment of fact was esentially the same except she claimed she thought the deadly glass particles were sugar rather than ice and she had this extra claim of damages;

8. Affiant had an itchy and sore throat with difficulty swallowing after consuming the drink at the Bar. Affiant had a cough with a feeling like something was in the affiant's throat.

If that isn't worth $10,000,000 each I don't know what is. All notarized by the Chief so it has to be legit!

However, another quibble. It is not stated anywhere in the Statment of Facts that the affiants actually sought medical help for their grievous and irreversible injuries. I think, had it gone to court, a defense attorney would have had some fun with that.

[Burnaby49]

I'll give the Chief, or whoever prepared these documents, at least one pat on the back. Unlike Dean Cory's mess the Statement of Facts actually included, and only included, the affiant's claimed facts of the events triggering their demands. No extraneous material, arguments, or legal maxims. Also, unlike Dean's vague grievances, the claimed facts in these documents are sufficient to understand the basis of their claims.

[wserra]

OK, Möwe, I'll run the same stuff through WestLaw.

(1) “A judicial writ fails not through defect of form.” A couple of old treatises. Nothing else.

(2) “Equity favours substance over form.” Washington State courts have used that phrase a couple of times. Old treatises. Nothing else.

(3) “Ignorance excuses no one.” Cited twice, by two state courts, one in 1937 and the other 1953. In each case context makes it clear that "of the law" is inferred.

(4) “The Law of God and the law of the land are all one.” One reference: this prolix gibberish styled a complaint, filed by one "Judith Metcalf:Scott, a sovereign, sui juris, free white female" in state court in Texas and removed to the Eastern District. It was dismissed in months. But hey, guys, don't let that stop you from trying it in Canada. Also in a couple of old treatises.

Dontcha love it when litigants think that being white makes them something special?

(5) “The law feigns where equity subsists.” In addition to the usual old treatises, one single case: Texas state court from 1883.

(6) “An action is not given to one who has not been injured.” No references at all.

(7) “Deceit and fraud should always be remedied.” In addition to the usual old treatises, one single case: Indiana state court, 1931.

(8) “Justice is neither to be denied or delayed.” Nothing.

Considerable similarity in the treatment this stuff gets between U.S. and Canada.

I can't leave the subject of "maxims of equity" without a final observation. UCLA law professor Eugene Volokh (who edits a frequently-amusing law blog called "The Volokh Conspiracy") has a list of his own "lost maxims of equity":

Equity abhors a nudnik.
Equity delights in a good practical joke.
He who seeks equity must do so with full pockets.
Equity is not for the squeamish.
Equity, schmequity.
Equity can be grumpy before its first cup of coffee.
Equity is crunchy on the outside, soft and chewy on the inside.
Equity is a mean drunk.
Equity, like all of us, prefers the rich and good-looking.

They mean about as much to 21st century law as do the originals.

[Dr. Caligari]

Equity abhors a nudnik.

No wonder the FMOTL types always lose!

[tm169]

I found a few entertaining examples on getoutofdebtfree.org by searching for Maxim.

"WHOEVER CREATES THE CONTROVERSY HOLDS THE LIABILITY - & WHOEVER HOLDS THE LIABILITY MUST PROVIDE THE REMEDY"

"Lets say the debt collector paid £4,000.00 for a £40,000.00 (10p in the £ is the average) but they are chasing you for the full £40,000.00 and they take you to court and lose, there is a maxim in law that states you can claim 3 times what they are claiming from you if you win."

"let he who will be deceived, be deceived"

"The last man standing in a case is the victor. Or, He who leaves the battlefield first is the loser. "

"Consensus facit legem ~ Consent makes the law"

[Fussygus]

"He who derives a benefit from a thing, ought to the feel the disadvantage of attending it."

"Your actions indicate your assent."

These are two of the maxims which should bring one to reconsider an OPCA type position. How can a person on one hand claim this societies court has no jurisdiction over them, then on the other hand ask it to bring them redress? Or use the resources of this society without considering they have any associated liability to this society?

They want the benefits of a marriage, but don't want the associated duties of being in the marriage. Both parties consented when they cohabited/married or otherwise, one cannot claim the owe no duty if they received a benefit.

A woman bears your child, then you have an associated duty to care for it and likewise provide her with reasonable accommodation for raising the child. If you want the benefit of coitus, then your actions indicate your assent to the associated duty if she gets pregnant. If you don't want that duty....better keep it in your pants and say no thanks.

Presume nothing is free and you will limit your duties, but just as the old saying goes "You can build bridges all your life BUT you suck one d*** they call you a ....", all it takes is one benefit.

Fuzzy

[Hilfskreuzer Möwe]

First – thanks for joining in folks, particularly wserra for providing the corresponding US half to the analysis. I did this as just a little experiment, but as this continues the more I see real value in documenting the false basis for these so-called principles of law.

So to complete my study of Dean’s guiding legal principles I went through the court documents we have from his Manitoba Queen’s Bench action to extract what I could. I found a total of 13 maxims, two of which:

• “An action is not given to one who has not been injured.”
  
  “Equity favors substance over form.”

were previously identified from Dean’s Federal Court Statement of Claim and evaluated.

So, on to the list. (I left the two previously evaluated maxims in for completeness.)

Maxim of Law: “An act done against my will is an act not done by me.”

Document 10 at:
(1) Writ of Habeus Corpus / Demand to show cause / Demand for Empirical Proof / Demand for Particulars (no date) (preamble)
(2) Nov. 12, 2013 Affidavit, para. 8
(3) Nov. 8, 2013 Affidavit, para 10
Document 11, para. 32

Never cited in any CanLII database judgment. A ‘Google’ search locates only two hits, both from the “Statism is Slavery” Facebook page (https://www.facebook.com/statismmakesyouaslave). Obviously false in law – as any good Freeman/Sovereign knows, an agent is delegated the right to act for a principle – and make decisions that bind the principal.

Status – not recognized by Canadian courts and legally incorrect.

Maxim of Law: “An action is not given to one who has not been injured.”

Document 10 at:
(1) Writ of Habeus Corpus / Demand to show cause / Demand for Empirical Proof / Demand for Particulars (no date) (preamble)
(2) Nov. 12, 2013 Affidavit, para. 13
Document 11 at para. 13

Status – addressed in earlier thread post - not recognized by US or Canadian courts – entirely fabricated by Dean.

Maxim of Law: “Equity will not suffer a statute to be used as a cloak for fraud.”

Document 10 in Writ of Habeus Corpus / Demand to show cause / Demand for Empirical Proof / Demand for Particulars (no date) (preamble)
Document 11 at para. 17

This is an interesting one. It is never cited in any CanLII database judgment, a ‘Google’ search finds zero hits, however there exists a well-recognized maxim of equity with closely related language: “Equity will not allow a statute to be used as a cloak for fraud.” (http://en.wikipedia.org/wiki/Maxims_of_equity), with this explanation “Equity prevents a party from relying upon an absence of a statutory formality if to do so would be unconscionable and unfair. This can occur in secret trusts and also constructive trusts and so on.”

That said, searching CanLII again with the correct maxim fails to identify a single instance where this maxim has been cited. Equity clearly does not trump legislative formalities in Canadian law, nor for that matter UK law, see for example the Statute of Frauds, which his binding.

Status – apparently unrecognized by Canadian courts and contrary to some common-law principles.

Maxim of Law: “Notice to agent is notice to Principle and notice to Principle is notice to agent.”

Document 10 in Nov. 14, 2013 “Notice of Breach of Oath and Trust”

While this language is never cited in a CanLII case, variations on its theme are recognized as a “trite principle of agency law”, for example Saraceni v. Rechenberg, 1971 CanLII 650 (ON SC); Hastings Mutual Fire Ins. Co. v. Thomas Shannon, 2 SCR 394.

Status – good law in Canada.

Maxim of Law: “An unrebutted affidavit stands as truth in commerce.”

Document 10 in Nov. 14, 2013 “Notice of Breach of Oath and Trust”
Document 11 at para. 90

I was very curious about this one because I’ve seen it countless times in Sovereign/Freeman materials. Appears in CanLII on one occasion, as a “Maxim of Law” in an OPCA document reproduced in the judgment: Perreal v Knibb, 2014 ABQB 15. A related statement, again by an OPCA litigant, is found in Dempsey et al. v. Envision Credit Union et al., 2006 BCSC 1324. A ‘Google’ search finds this reproduced countless time on Sovereign/Freeman websites but I did not locate a single instance where this alleged Maxim appears in an actual legal reference.

weserra – how does it look in the US?

I do not think this is a valid statement of the law because judges retain the authority to reject affidavit evidence. Affidavits do not make evidence beyond judicial scrutiny. I’m a little unclear what “truth in commerce” would be anyway.

Status – not recognized by Canadian courts and legally incorrect.

Maxim of Law: “An unrebutted affidavit is acted upon as the judgement in commerce” or “An unrebutted affidavit is acted upon as the judgment in commerce.”

Document 10 in Nov. 14, 2013 “Notice of Breach of Oath and Trust”
Document 11 at para. 90

Never cited in any CanLII database judgment. A ‘Google’ search finds this reproduced countless time on Sovereign/Freeman websites but I did not locate a single instance where this alleged maxim appears in an actual legal reference.

weserra – any US hits?

Again, I do not think this is a valid statement of the law because a judgment must come from a judge, not an affidavit which is purely a form of evidence. It seems to me the logical meaning of this alleged maxim is that you can act on unrebutted affidavit evidence, for example to seize property you allege you own, all without judicial intervention. Which raises the question – what are courts for, then? This would also presumably make an affidavit a foisted unilateral agreement, which is clearly invalid in Canada.

Status – not recognized by Canadian courts and legally incorrect.

Maxim of Law: “Equity favors substance over form.”

Document 11 at para. 30

Status – addressed in earlier thread post - not recognized by Canadian courts, used in a few older US cases and authorities.

Maxim of Law: “Fraud vitiates all.”

Document 11 at para. 31 and para. 110

Numerous citations in Canadian CanLII database cases as part of a longer rule “Fraud vitiates all contracts.”, for example Scheuerman v. Scheuerman, 52 SCR 625. However, outside that context, the simple statement of “Fraud vitiates all.” also appears in a few cases: Gray v. Langley (Township), 1986 CanLII 1079 (BC SC); Metzger v Metzger, 2011 ONSC 4884. A ‘Google’ search turns up many instances of this rule in legal authorities.

Status – recognized in Canadian courts and legally correct.

Maxim of Law: “Fraud and justice never agree together.”

Document 11, at para. 31

Never cited in any CanLII database judgment, but appears consistent with general principles of equity. A ‘Google’ search locates this in US legal texts dated 1824, 1855.

Status – not recognized by Canadian courts, but consistent with the concept that fraudulent transactions can be unwound.

Maxim of Law: “The express mention of one person or thing is the exclusion of another.”

Document 11, at para. 32

A CanLII search identifies a recent Newfoundland Court of Appeal judgment that specifically interprets and comments on this exact maxim, the “expression unius” principle: Eco-Zone Engineering Ltd. v. Grand Falls - Windsor (Town), 2000 NFCA 21. The court stresses this is not an absolute principle in Canadian law, but instead “only operates where not outweighed by other interpretative factors.” A ‘Google’ search finds countless legal references to this maxim, both modern and older.

Status – a recognized principle that is potentially useful in documentary and legislative interpretation in Canada, but not an absolute rule.

Maxim of Law: “What is expressed renders what is implied silent.”

Document 11, at para. 32

Never cited in any CanLII database judgment. A ‘Google’ search indicates this maxim appears in Bouvier’s Law Dictionary, 1856. Sort of self-evidence, but nonetheless inconsistent with modern Canadian legal principles where interpretation flows from the purpose of legislation, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27.

Status – not recognized by Canadian court, only vaguely applicable to current rules of document interpretation.

Maxim of Law: “Equality before the law is both mandatory and paramount.”

Document 11, at para. 62

Never cited in any CanLII database judgment. A ‘Google’ search only finds one hit, a “Notice Affidavit of Truth with Opportunity to Cure” by “living Sovereign commonly known as Aaron, of the Milne family” – a foisted unilateral agreement and fee schedule by an Irish Freeman-on-the-Land. In any case, the statement is consistent with Canadian law.

Status – not recognized by Canadian courts, but consistent with Canadian law.

Maxim of Law: “Let justice be done though the heavens may fall.”

Document 11, at para. 112.

No citations in the CanLII database for that exact phrase, but various forms do show up in reported judgments, for example “Let justice be done though the heavens fall.” In a quoted passage in Leary v. The Queen, [1978] 1 SCR 29, though this generally appears as a point of rhetoric, than law. Other variations emerge embedded in OPCA documents: Szoo’ v. RCMP, 2011 BCSC 696; Meads v. Meads, 2012 ABQB 571.

A ‘Google’ search indicates this maxim has a long history, particularly “Somersett’s Case” of 1772 which outlawed slavery in England.

Status – recognized by Canadian courts, but chiefly on a historical basis.

Conclusion: Of Dean’s 13 maxims of law, four are clearly incorrect, three are good law, and the remainder are not recognized legal principles but have some historical or interpretive value.

What caught me off guard were the result on these two: “An unrebutted affidavit stands as truth in commerce.” and “An unrebutted affidavit is acted upon as the judgment in commerce.” I didn’t think they were legally correct, it’s just I imagined there must be some historical or documentary basis for these maxims. Where did they come from? Have I missed some basis for these things?

SMS Möwe

[Burnaby49]

What caught me off guard were the result on these two: “An unrebutted affidavit stands as truth in commerce.” and “An unrebutted affidavit is acted upon as the judgment in commerce.” I didn’t think they were legally correct, it’s just I imagined there must be some historical or documentary basis for these maxims. Where did they come from? Have I missed some basis for these things?

I'm guessing they have no basis in judicial commentary, they are inventions to suit Freemen purposes. Legal maxims are guiding principles of law and jurisprudence but these are too specific to be principles, more like rules.

If I'm right it's not hard to figure out why. All of the Freemen I've dealt with, and particularly the Chief, are really big on foisted unilateral contracts to eliminate all of life's little problems. These rely entirely on the claimed principle that silence legally implies assent. Send off a contract, don't get a response, Bingo. Other party owes you whatever you put on paper with no recourse. Great stuff except that the concept has no support in either statutory or common law. So they had to make something impressive sounding up to support it.

The unilateral contracts used in the Sandbar scam (mentioned in a preceding post) were all titled as affidavits. When there was no response the Sandbar was told it had been found liable without recourse because there was now an unrebutted affidavit in the complainant's favour and tough luck, because, as we all know, "An unrebutted affidavit is acted upon as the judgment in commerce". I guess it sounds like a winning strategy if you know nothing about law.

[Dai Kiwi]

What caught me off guard were the result on these two: “An unrebutted affidavit stands as truth in commerce.” and “An unrebutted affidavit is acted upon as the judgment in commerce.” I didn’t think they were legally correct, it’s just I imagined there must be some historical or documentary basis for these maxims. Where did they come from? Have I missed some basis for these things?

I'm guessing they have no basis in judicial commentary, they are inventions to suit Freemen purposes. Legal maxims are guiding principles of law and jurisprudence but these are too specific to be principles, more like rules.

If I'm right it's not hard to figure out why. All of the Freemen I've dealt with, and particularly the Chief, are really big on foisted unilateral contracts to eliminate all of life's little problems. These rely entirely on the claimed principle that silence legally implies assent. Send off a contract, don't get a response, Bingo. Other party owes you whatever you put on paper with no recourse. Great stuff except that the concept has no support in either statutory or common law. So they had to make something impressive sounding up to support it.

The unilateral contracts used in the Sandbar scam (mentioned in a preceding post) were all titled as affidavits. When there was no response the Sandbar was told it had been found liable without recourse because there was now an unrebutted affidavit in the complainant's favour and tough luck, because, as we all know, "An unrebutted affidavit is acted upon as the judgment in commerce". I guess it sounds like a winning strategy if you know nothing about law.

A perversion of the maxim perhaps? Think of the standardised wording that opens an affidavit in reply filed with a notice of defence. In NZ it is along the lines of 'not responding to a specific paragraph does not signify agreement to it'.

[notorial dissent]

The origin of those two sayings,

An unrebutted affidavit stands as truth in commerce.

and

An unrebutted affidavit is acted upon as the judgment in commerce.

can regrettably and wholly be blamed on this side of the border and derives from our UCC, and wait for it, commercial litigation.

They come from almost directly and totally from our crowd of "everything is contract" fantacists, and they base it on a misconstruence of the legal principal in litigation that an affidavit(in a civil case), unless rebutted, is accepted as true(truth), and therefore can never be challenged. They take that not quite hard and fast rule, as courts are not bound to unequivocally or blindly accept an affidavit as true, just that they usually do unless they are challenged, and marry it to that old sovrun favorite and standby of the foisted unilateral contract, and voila, you have the ubiquitous "Affidavit of Truth" by which all sovruns and FOTL spring miraculously from jail or court.

I'm not surprised that you draw a total blank on it in Canadian law as as it doesn't, at least to my limited knowledge, have anything similar, and you certainly aren't bound by the our UCC, despite that most of the whackadoos seem to think it is some kind of universal international absolute law. Regrettably, I expect you will start seeing more of it as the more unoriginal of your crowd starts thieving more from their southern cousins.

WES can most certainly explain this far better than I can, but the above is the gist of it.

[wserra]

Maxim of Law: “An unrebutted affidavit stands as truth in commerce.”

weserra – how does it look in the US?
...
Maxim of Law: “An unrebutted affidavit is acted upon as the judgement in commerce” or “An unrebutted affidavit is acted upon as the judgment in commerce.”

weserra – any US hits?

Only a little time to answer at the moment. Short version: yes, but not the type sovruns would like. Each draws two hits, from the same two opinions. Each opinion quotes from the particular sovrun document, and basically says "this stuff is gibberish".

One of those is an opinion I just added to my collection: an excellent history of Moorish litigation in the U.S. After reviewing that history, Judge Kugler describes the complaint in the matter as a "gibberish-filled eighteen-page single-spaced Pleading", and dismisses it. Ameen Bey v. Stumpf, 11-cv-5684 (DNJ)

U.S. law, which I have to believe is quite similar to that in other common-law systems: failure to respond to a document is only deemed an admission if there is a legal duty to respond to it. The two most common such documents are complaints and notices to admit, served as part of a real, on-going case - failure to respond is deemed an admission. Other docs you can ignore with impunity.

[Fussygus]

Ontario Rules of Civil Procedure Rule 19 - noting in default. If you do not respond to a lawsuit and are subsequently found in default (Rule 19.01(1), then you, the defendant, are "...deemed to admit the truth of all allegations of fact made in the statement of claim.." (Rule 19.02(1)(a)).

Therefore, clearly the maxim "An unrebutted affidavit is taken as truth" is in fact a rule of the court.

Now the sovereign position seems to content that the maxim also applies if someone is given a fee schedule or other "Notice". The problem with this is that the person on the other side would necessarily have to have a duty to respond to such a document. I.e. a police officer need not respond to such as they have no reciprocal duty to respond, their duty is to enforce the traffic laws. Claiming your someone other than a person liable to the traffic laws serves no purpose when you violate a traffic law, you don't have jurisdiction to bring such information forward. The officer doesn't care what you call yourself or what status you claim to have, he is enforcing the rules in place for the claimed property of this society. If he can't check off that you have complied with all the rules then a claim is made against you regardless of what you call yourself or what jurisdiction you claim to operate in.

Likewise I could put affidavit claiming anyone owes me a billion dollars. Just because they don't say they don't doesn't make it a truth. But the court will, by it's rules, give substance to their claim if no rebuttal is received. But rebuttal could be as simple as "no I don't". When they give you their fee schedule and claim that any action against them is an indication of assent to the terms, they forget the maxim "The law always intends what is agreeable to reason". It is reasonable to determine that when they engage in the act of driving on this societies roads, they assent to the law/rules that associate to such use. So no fee schedule will usurp their deemed assent to the rules (note I word it this way for understanding purposes, they are bound by the laws in Canada regardless of any deemed assent. So no hold any response about this wording).

Fuzzy

[Pottapaug1938]

"(b) to the degree this submission was striving to operate as a document “registering” Plaintiffs’ rights, of any kind, simply by the virtue of having this submission entered on this District’s docket, this submission will be deemed stricken from the docket with an express statement that the docket sheet created in this matter cannot be used, directly or indirectly, as a source or evidence of any right conferred upon Plaintiffs."

So much for their evidence repository....

[wserra]

Ontario Rules of Civil Procedure Rule 19 - noting in default. If you do not respond to a lawsuit and are subsequently found in default (Rule 19.01(1), then you, the defendant, are "...deemed to admit the truth of all allegations of fact made in the statement of claim.." (Rule 19.02(1)(a)).

Therefore, clearly the maxim "An unrebutted affidavit is taken as truth" is in fact a rule of the court.

That has to be too broad. First of all, as I noted above, the unrebutted document must not only be part of an ongoing real case, but also must be the type of document to which the other party has a duty to respond. These wackos file all sorts of nonsense, some of it (such as the complaint in the Ameen Bey case, above) in real cases.

But it's more than that. Suppose you sue your neighbor for encroaching on your property with a new driveway. You seek a determination that the land in question is yours, an order directing your neighbor to remove his driveway, and you claim that the presence of the driveway has damaged you to the tune of $1,000,000,000. Your neighbor defaults. Real case, document to which he has a duty to respond. Do you get $1,000,000,000 as part of your default judgment? If you do in Ontario, you don't here.

[Burnaby49]

Ontario Rules of Civil Procedure Rule 19 - noting in default. If you do not respond to a lawsuit and are subsequently found in default (Rule 19.01(1), then you, the defendant, are "...deemed to admit the truth of all allegations of fact made in the statement of claim.." (Rule 19.02(1)(a)).

Therefore, clearly the maxim "An unrebutted affidavit is taken as truth" is in fact a rule of the court.

Likewise I could put affidavit claiming anyone owes me a billion dollars. Just because they don't say they don't doesn't make it a truth. But the court will, by it's rules, give substance to their claim if no rebuttal is received. But rebuttal could be as simple as "no I don't". When they give you their fee schedule and claim that any action against them is an indication of assent to the terms, they forget the maxim "The law always intends what is agreeable to reason". It is reasonable to determine that when they engage in the act of driving on this societies roads, they assent to the law/rules that associate to such use. So no fee schedule will usurp their deemed assent to the rules (note I word it this way for understanding purposes, they are bound by the laws in Canada regardless of any deemed assent. So no hold any response about this wording).

Fuzzy

This is a standard Freeman approach, taking a line in a statute, or in this case a rule of civil procedure, and applying it in a different and entirely irrelevant context as if is some kind of universal law.

To start with a Statement of Defense, or other documents in a response to a lawsuit, are not affidavits. Wikipedia defines an affidavit as;

An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law.

Standard court documents are neither sworn statements or affirmed. Even if they were Fusstgus's comment;

Therefore, clearly the maxim "An unrebutted affidavit is taken as truth" is in fact a rule of the court.

is nonsense since the rule of civil procedure he cites is specific only to the administration of ongoing lawsuits in Ontario. So how is this supposed to be stretched to some overriding rule of law applicable to every situation where a Freeman takes any normal document and has a fake notary pretend to sign it under oath? So to fussygus, if you believe your position to be rock solid (you do say that it is clearly a rule of the court), then do it. Send off a bunch of unilateral contracts claiming all and sundry owe you millions. When they don't pay take them to court. Since you are right you will obviously win and you'll be rich, quite legally. Then come back here and rub our noses in it. Until any Freeman actually does this rather than just rant about it their position is "clearly" just nonsense that they've made up with no basis in law whatever.

I have attended three Freemen trials, Yankson, Holmes, and the Nanaimo Three, where the plaintiffs/defendants relied on unresponded unilateral contracts. All were done under oath as affidavits. In all these cases the contracts were entered into evidence and the parties claimed that the contracts were valid and legally enforceable. In all cases the plaintiff/defendants lost totally. So how is this a rule of the court if the court itself rejects them?

[Fussygus]

Sorry, I had other work to do, so I didn't deal with addressing some of what Burnaby notes.

This rule gives credence to a claim "lawsuit" if it is unrebutted, there are other more specific issues that come forth depending on the claim. For instance an unliquidated claim cannot simply be endorsed by the registrar, it requires the submission of an affidavit, then to be brought before a judge and he will rule on it.

So you are right Burnaby that it isn't simply as easy as getting someone to default to gain judgement. My point was to point out that the courts ACCEPT a pleading as proven baring any contradictory rebuttal .... in cases. Those cases are limited to liquidated claims and are generally for items from financial transactions, mortgages, bills etc. ALL unliquidated claims, claims for damages require an affidavit and to be brought before a judge. Therein the judge, having only one side of the story because of the default will, if not beyond the confines of reason, rule for the plaintiff. Or at least he MAY grant judgement.....or dismiss the action OR order that the action proceed to trail.

Now there is a further issue in someone claiming someone owes them something when they in fact do not. If a judge does award judgement for the plaintiff, the defendant will be damaged. Such damage would properly be based on the fraud perpetrated by the plaintiff and the evidence is within his own affidavit. So there is clearly room for a criminal charge in his creation of the affidavit (mischief, false affidavit, perjury, etc).

So I repeat my point is that the referenced maxim is applicable, but is not necessarily a true maxim per sa, it is more a rule until either the claim is denied or the fraud exposed. And it certainly doesn't prejudice someone from correcting the record after the fact.

So in regards to the FOTL approach of sending various claims to others demanding rebuttal otherwise their position is valid is without merit, anymoreso than if a child claims his dad is tougher than another kids dad. Because he doesn't respond doesn't mean its true. But call someone out to a fight and he doesn't show up (aka Cartman v. Wendy)......those around will draw their own conclusion and it will likely be the one who doesn't show up (rebut) is the looser.

Fuzzy

[Fussygus]

Maxims are just general rules of understanding, not definitive determinations.

Sort of like Burnaby having declared the maximum number of pints he will have at any one pub in the Northwest is 8, then he is faced with the persuasive force or double D's . Same goes for the persuasive force of truth and equity.

Fuzzy