ktlight
23rd July 2011, 07:12
From Rob Menard of DIF:
"Consent is a vital part of the law.
Someone tried claiming that if they do not consent to the idea that consent is needed, then consent is not. They claimed that if someone claimed the right to not obey their rules, then they had a right to do the same thing, and then they misidentified law as merely the other’s rules. What are rules but obligations to do or not do something? And where do we find them most often? In contracts, and under contract law. So let us see if the concept of consent plays any role in contracts, and thus in law.
If we look at contractual obligations and restraints as rules, then the fallacy of their position becomes apparent and the belief that they destroyed the ‘consent is needed’ argument revealed as merely wishful thinking on their part.
According to contract law, If you are not a party to a contract, then you have no contractual obligations under the contract, (no rules to follow) and to be a party to a contract you must consent. So if you do not consent, you have no contractual obligations. Thus your consent is required for those obligations or rules to be enforceable against you, for they are not law, until agreed to.
Their Fallacious Response - “Fine. If you do not consent to these obligations under my contract (my rules), then I do not consent to contract law, as those are ‘your rules’!”
They claim their position destroys the consent is needed to contract argument, but our position embraces contract law and uses it to avoid what would be contractual obligations; the other position has to completely abandon contract law to impose non-contractual obligations and claim victory.
So how do they claim they won and destroyed the consent is needed to contract argument when they had to abandon contract law to do so? We are using contract law to avoid obligations, they are saying that because we do not consent to a contract with them (their rules) , they do not consent to contract law so can impose obligations on you without your consent. I do not understand how anyone can think that means they won, after all one side is using law and they are not. Can anyone explain that please?
For the lawyers and others interested here, in your opinion, is consent needed for a contract to be lawful? Do you agree with the other position that they can abandon contract law, because we refuse to consent to the terms of a contract? Do you think them abandoning contract law by calling it ‘Your Rules’ means they destroyed the consent is needed to contract argument? I seem to remember from high school that a meeting of the minds and agreement is required before a contract can be considered lawful. So can one guy impose contractual obligations on another guy even if that other guy is not a party to the contract?
Do contracts generally require consent? I mean, if you refuse to sign a contract with me because you do not consent to it, can I take you to court and successfully sue you under that contract and claim that you not consenting or agreeing to the contract and not being a party to it is immaterial because I do not consent to contract law, and then get the obligations under that contract enforced upon you as if you had consented? Even though you never consented to the contract at all in the first place, and I by abandoning contract law entirely, confirm there is no lawful contract? Is agreement/consent or a meeting of the minds required for contracts to be lawful, or not?
I only see two options. Either consent is needed to contract, and enforce obligations, or not. So which is it?
It may be helpful to look at a hypothetical situation.
Let’s say ‘someone’ comes to you with a contract to buy your car for $1. You decide to not consent to the terms of that contract. You do not accept their rules. They then say “Well, since you claim the right to not consent to the terms of my contract and accept my rules, I claim the right to not consent to contract law, as those are your rules! Your car is mine, you must take the dollar!”
You end up in court, and the court must decide if there is an enforceable contract or not. Who will the judge side with? You say there is no contract, as you did not consent to the terms. You did not agree to their rules. They say there is no contract, as they do not consent to contract law (because they mistakenly think that ‘contract law’ and the ‘terms of a contract’ under contract law are the same thing) and because they do not, no contract is needed. So is there an enforceable contract, and were they right? Will they get the car? Will they be able to buy any car they want for $1 just by offering a contract and then claiming to not consent to contract law if the contract is not consented to? Or is there no enforceable contract, in which case they were wrong? Bear in mind the Judge just bought a new car, and does not want to be in a position to have to sell it to someone for $1 merely because they made an offer and then decided contract law was the same as the terms of a contract, and could be denied equally.
What some other parties fails to realize is that consent opens a door, and denying consent closes it, and the door you close with a denial of consent, cannot be opened by the one you are denying consent to, by him denying consent to your denial of consent. All they can do is close another door, and give the court TWO reasons to claim there is no contract, thus no obligation. One because you did not consent to the offer, and two because they are not using contract law.
Ones ability to deny consent is not a function of the consent of the one being denied. Nor can it be overturned by the other party denying consent in turn. To claim that it is, renders the concept of consent completely meaningless.
Bearing in mind that we are governed by our contracts, and contract makes the law as it were, I never said that one could deny consent to the actual law, or to the law of contract. What I said was that law of contract allows us to deny consent to the terms of a contract. Ignorant people then think that ‘the terms of a contract’ and contract law are the same thing, and claim that if I can deny consent to the terms of their contract, then they can get it enforced by denying contract law itself.
Your denial never abandoned law and as a matter of fact relies upon it. Their denial abandons law entirely.
So who gets the car in this situation? You because there is no contract, or them, because there is no contract law? I think the answer to that will settle once and for all, (at least for anyone with common sense and no ulterior hidden agenda) the questions of ‘is consent necessary or not?’, and ‘was the consent is needed position completely destroyed?’ when dealing at least with this one particular branch of law.
Then we can look at other branches of law, remembering statutes are simply the terms of a societal contract.
So who gets the car? You? Or the other guy?"
"Consent is a vital part of the law.
Someone tried claiming that if they do not consent to the idea that consent is needed, then consent is not. They claimed that if someone claimed the right to not obey their rules, then they had a right to do the same thing, and then they misidentified law as merely the other’s rules. What are rules but obligations to do or not do something? And where do we find them most often? In contracts, and under contract law. So let us see if the concept of consent plays any role in contracts, and thus in law.
If we look at contractual obligations and restraints as rules, then the fallacy of their position becomes apparent and the belief that they destroyed the ‘consent is needed’ argument revealed as merely wishful thinking on their part.
According to contract law, If you are not a party to a contract, then you have no contractual obligations under the contract, (no rules to follow) and to be a party to a contract you must consent. So if you do not consent, you have no contractual obligations. Thus your consent is required for those obligations or rules to be enforceable against you, for they are not law, until agreed to.
Their Fallacious Response - “Fine. If you do not consent to these obligations under my contract (my rules), then I do not consent to contract law, as those are ‘your rules’!”
They claim their position destroys the consent is needed to contract argument, but our position embraces contract law and uses it to avoid what would be contractual obligations; the other position has to completely abandon contract law to impose non-contractual obligations and claim victory.
So how do they claim they won and destroyed the consent is needed to contract argument when they had to abandon contract law to do so? We are using contract law to avoid obligations, they are saying that because we do not consent to a contract with them (their rules) , they do not consent to contract law so can impose obligations on you without your consent. I do not understand how anyone can think that means they won, after all one side is using law and they are not. Can anyone explain that please?
For the lawyers and others interested here, in your opinion, is consent needed for a contract to be lawful? Do you agree with the other position that they can abandon contract law, because we refuse to consent to the terms of a contract? Do you think them abandoning contract law by calling it ‘Your Rules’ means they destroyed the consent is needed to contract argument? I seem to remember from high school that a meeting of the minds and agreement is required before a contract can be considered lawful. So can one guy impose contractual obligations on another guy even if that other guy is not a party to the contract?
Do contracts generally require consent? I mean, if you refuse to sign a contract with me because you do not consent to it, can I take you to court and successfully sue you under that contract and claim that you not consenting or agreeing to the contract and not being a party to it is immaterial because I do not consent to contract law, and then get the obligations under that contract enforced upon you as if you had consented? Even though you never consented to the contract at all in the first place, and I by abandoning contract law entirely, confirm there is no lawful contract? Is agreement/consent or a meeting of the minds required for contracts to be lawful, or not?
I only see two options. Either consent is needed to contract, and enforce obligations, or not. So which is it?
It may be helpful to look at a hypothetical situation.
Let’s say ‘someone’ comes to you with a contract to buy your car for $1. You decide to not consent to the terms of that contract. You do not accept their rules. They then say “Well, since you claim the right to not consent to the terms of my contract and accept my rules, I claim the right to not consent to contract law, as those are your rules! Your car is mine, you must take the dollar!”
You end up in court, and the court must decide if there is an enforceable contract or not. Who will the judge side with? You say there is no contract, as you did not consent to the terms. You did not agree to their rules. They say there is no contract, as they do not consent to contract law (because they mistakenly think that ‘contract law’ and the ‘terms of a contract’ under contract law are the same thing) and because they do not, no contract is needed. So is there an enforceable contract, and were they right? Will they get the car? Will they be able to buy any car they want for $1 just by offering a contract and then claiming to not consent to contract law if the contract is not consented to? Or is there no enforceable contract, in which case they were wrong? Bear in mind the Judge just bought a new car, and does not want to be in a position to have to sell it to someone for $1 merely because they made an offer and then decided contract law was the same as the terms of a contract, and could be denied equally.
What some other parties fails to realize is that consent opens a door, and denying consent closes it, and the door you close with a denial of consent, cannot be opened by the one you are denying consent to, by him denying consent to your denial of consent. All they can do is close another door, and give the court TWO reasons to claim there is no contract, thus no obligation. One because you did not consent to the offer, and two because they are not using contract law.
Ones ability to deny consent is not a function of the consent of the one being denied. Nor can it be overturned by the other party denying consent in turn. To claim that it is, renders the concept of consent completely meaningless.
Bearing in mind that we are governed by our contracts, and contract makes the law as it were, I never said that one could deny consent to the actual law, or to the law of contract. What I said was that law of contract allows us to deny consent to the terms of a contract. Ignorant people then think that ‘the terms of a contract’ and contract law are the same thing, and claim that if I can deny consent to the terms of their contract, then they can get it enforced by denying contract law itself.
Your denial never abandoned law and as a matter of fact relies upon it. Their denial abandons law entirely.
So who gets the car in this situation? You because there is no contract, or them, because there is no contract law? I think the answer to that will settle once and for all, (at least for anyone with common sense and no ulterior hidden agenda) the questions of ‘is consent necessary or not?’, and ‘was the consent is needed position completely destroyed?’ when dealing at least with this one particular branch of law.
Then we can look at other branches of law, remembering statutes are simply the terms of a societal contract.
So who gets the car? You? Or the other guy?"