Arbitration clauses vs. inviolate right to Jury trial

Many (most?) State constitutions contain the following clause:

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That the right of trial by Jury shall remain inviolate.

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However, many contracts include "mandatory" arbitration clauses; that is, language to the effect that in the event there is a dispute, the parties agree to binding arbitration with no other recourse.

Considering that the People's Supreme Law states trial by Jury is inviolate -- something that cannot be violated, period -- does anybody have any experience with cases or authorities in which it was decided whether a contractual agreement to arbitration supersedes the Constitutional guarantee?

Thanks, everyone.

I enjoy the way you think. I have a little vicarious (suitors brain trust) with the binding arbitration clause. I had not thought it through like you though.

I am reminded of unalienable being that you cannot give it up, voluntarily or by coercion. Inviolate... Great thread!

I have heard that some courts have ruled this "inviolate" "right" can be waived -- but, can it be waived by contract? I would think the answer must be a resounding "NO", as "inviolate" is quite clear. That is, for any contract made within the situs of the Constitution.

So if a court ruled that something "inviolate" can be waived, would that not be an admission they deem the situs of the contract and/or parties to be without the authority ordained by and of the Constitution? IOW, foreign?

My perception is colored by the success of correctly interpreting the Fed Act about redeeming lawful money. In other words anything goes under the penumbra of naked contract. More specifically though we are now in the 153rd year of the Proclamation beginning the Income Tax. LINCOLN found a Foreigner among us to declare a domestic enemy.

I think you may be correct, David. Practically "anything goes" (except possibly the right to "due process") in that place where the Federal Reserve Note circulates.

In light of that, could other "inviolate rights" also be contracted away? For example, could a contract stipulation bar someone from voting (in public elections)?

....Judicial Branch Equity courts.

As far as I can tell certain "courts" are nothing more than Administrative offices/locations where Executive Branch administrative processes take place = where they try and get you to pay them money for some act that has no injured party or damaged party. And then there are the Equity Courts where one can determine if something is actually theirs like a title to a car, etc. The "law" courts say that possession of something means "ownership" but an Equity Court will determine if someone's ownership of something occurred via fraud, ie: stolen property.

I am new to this forum. I was looking for some information on Paul Andrew Mitchell and stumbled across it. I hope that I can learn from others. I have done a lot of reading and a lot of listening to various people that seem to have done some really great research. One of them is Paul Andrew Mitchell. The other's are Richard McDonald and Robb Rytlewski.

Please let me know I am off base on my understanding of "admin courts" vs. the equity courts.

Thanks,

Sam

http://1828.mshaffer.com/d/word/inviolate

The right shall remain inviolate.

To me, this means NO ONE may deny someone else's right; however, said right can be contracted away since...

"No State shall...pass any...Law impairing the Obligation of Contracts..."

As long as the contract is true and lawful, the right to a trial by jury can be waived.

By the way...

"Jury Trial" and trial by jury are not the same.

A trial by jury is a common law right. A "Jury Trial" is a statutory privilege.

Interesting distinction AJ! My guess is that the difference is that the chief justice is a neutral arbitrator in the first "common law" setting and the Judge determines the application of law while the Jury only determines the facts in the second setting.

Hi Sambking;

I think the distinction between law and equity was best articulated in Bennett v. Butterworth - 52 US 669. So it would only be after FDR moved everything, in context of my premise above, into banking law through endorsement that the federal common law could be announced to blend the two.

But we have an interesting esoteric going around the SE Corner of the Golden Rectangle as a Masonic Survey. Territorial Governor GILPIN (SW Corner) began issuing fiat notes to pay the Union Soldiers here, and so we find the US Notes backed by coinage in that precursor to LINCOLN's Proclamation starting the 153 Tax Years on April 15th. Forgive me for letting my keyboard and imagination soar here but Jethro led me down that bunny hole:

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So if a court ruled that something "inviolate" can be waived, would that not be an admission they deem the situs of the contract and/or parties to be without the authority ordained by and of the Constitution? IOW, foreign?

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I don't think this will tie together well in this post, but we have to begin somewhere...

There are two Enochs from Genesis - both marked by a stigma called OATH. There is a son from Cain and there is a son descended from Seth, in this interpretation so to avoid the Sons of God - Seth's lineage from being killed off like Abel, the Sons of Cain were given this OATH, this Mark from God to rule over evil.

The reason you will find this sketchy as a model is that because almost any Christian who attends Sunday School will espouse a Fallen Angel doctrine. That Lucifer wanted to be like The Most High and so was cast to earth with his 1/3 of the other angels who followed him. However there is hardly any mention of this in the Bible itself, scarcely enough to base such important foundation about Satan and in general, Good and Evil.

The event is described in the Book of Enoch and takes place on Mount Hermon.

Quoting from Beyond Kabbalah; The Teachings that Cannot be Taught by Joel David BAKST p. 32:

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...They would then reclaim those maps, models and metaphors of the Secret Soul of the Seven Sciences to open up the secrets of the Torah and consciously and methodically use their synergistic force to stimulate the redemption process. Examples of these are the six simple scientific concepts explained in the Door of Models: Dimensionality (mathematics), split-brain hemisphericity (neurology), the Coherent Superposition (quantum mechanics), the Mobius strip (topology), holography (optics and information storage), fractals (geometry and chaos theory), together with the Torus Model of Consciousness. The Seven Sciences are the keys to open the doors of the Seventy Facets of the Torah.

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As expected I have highlighted what might be of most interesting to the Readers who want off the Battlefield of commercial contract where our rights are diminished and ignored. Maybe I can resort to a Doctor of the Spiritual Sciences Dr. Linda Darlene GADBOIS (composed from text messages):

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God as Our Higher Self

God as our higher self communicates with us intuitively thru allegorical metaphor. If we don't know how to speak the language by being able to interpret and discern its meaning then there is no real means of communication and we fail to see the reality that lies hidden within surface ideas, waiting to be recognized and perceived as real. Shapes and analogies as a series of correspondences, represent formulas as laws all interacting within a situation that forms a dynamic that is ideal for everyone involved at different levels of awareness and as suited to each person's level of consciousness. Thru adaptation that reforms and interprets thru their personal model the same symbol can take on thousands of different meanings, and in some cases, none at all because the person doesn't even recognize them as a language that has deep hidden clues within it revealing operations that would serve as instructions, if, they could only be able to actually perceive them.

I was referring the set of laws that the Golden Mean as a mathematical model represents in terms of regeneration through ratios and equivalents, that form a growth process of an entity or paradigm (mind) that evolves it thru time as a moment-by-moment transformation brought about thru an energetic exchange of influences that modify the mind as an absorption, integration and equilibrating process that forms an endless array of variables as a result. Dreams, as states-of-mind on different planes of consciousness, all of which contain corresponding realities as a form of theme, operate according to the same set of laws! That's why law is considered absolute truth; it operates in a consistent manner on all levels of existence, not just the physical.

We create the reality of dreams as a co-creation with various sources and influences that form modifications just like we do in our waking state. The Laws that govern the energetic realm are universal in nature and permeate all levels of consciousness as a series of analogies and correspondences. The communication from higher realms to lower ones acts as a step-down process similar to translations from one language born out of a particular culture into another language formed by a different cultural conditioning. So not only are the symbols and images essentially different, their meanings in terms of the conceptualized realities they represent are also different. So, the translation has to be an intuitive process that forms imagery into personal experience (imaginary) as a primary means of forming an even more unique interpretation that personalizes the message making it ideal to the individual who acts to co-create it through the process of conceiving it.

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Originally Posted by Jethro

Many (most?) State constitutions contain the following clause:



However, many contracts include "mandatory" arbitration clauses; that is, language to the effect that in the event there is a dispute, the parties agree to binding arbitration with no other recourse.

Considering that the People's Supreme Law states trial by Jury is inviolate -- something that cannot be violated, period -- does anybody have any experience with cases or authorities in which it was decided whether a contractual agreement to arbitration supersedes the Constitutional guarantee?

Thanks, everyone.

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It is my comprehension that INVIOLATE means that a right or privilege is not violated. But since I have choice as we all do, then I have the ability to contract. And therefore I have the choice to enter into a contract as per the terms agreed. Therefore if the terms in the agreement include that arbitration will be the means for dispute resolution, then the Contract is the Law and there is no violation of any rights. Meaning IF I make a promise in an agreement then I should keep it according to my agreement.

Therefore if I cannot live with the terms of the contract then I should not make a use of the things governed by the contract - especially if the contract stipulates that the right of trial by jury stands waived. We are all grown ups and we each have full liability or we should anyways - and that being said - if we don't like the contract we should novate it - and if we cannot novate it, then we should not enter upon the contract if we cannot live with the terms.

That seems so matter of fact to me that I am surprised that I am even typing these words. Nevertheless, it is a truth. Its kind of like making a use of Yahoo mail and then saying I am not bound by the Terms of Use agreement that Yahoo, Inc. provided as part of the service.

Those who would say where is the claim and prove it stuff bore me to death. Fact is the men and women who have equity in Yahoo, Inc. have sweat and hard work in developing that product for their gain and there is no reason why JOHNNY COME LATELY should have any equity in their creation. Therefore anyone making a Use is subject to the contract called Terms of Use or Terms of Service that Yahoo, Inc provides. If you can't live with the contract then don't use the site.

Slavery is repugnant - yet if I consent to be a slave, then so be it. And yes, people consent to be slaves every day. It is called DEBT. Is their right of freedom violated? Not in the least!

Happiness Machines are made in Consent.

Now according to Johnny Bouvier to Violate is an act done in Force. Finding no force but rather mutual consent, I cannot see how I have been VIOLATED in regard to any right to jury trial - that is if I expressly waived that right in contract.

Of course I might be so weak minded as to beg rights of Usufruct UNDER another mans claim but then that would make me third party PRAYING under someone else's claim. Bowing a knee as it were. I find no need to bow as I have full access to Usufruct in my own claim. Nevertheless, each to his own according to his conscience.

Shalom,
MJ

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Originally Posted by Michael Joseph

It is my comprehension that INVIOLATE means that a right or privilege is not violated. But since I have choice as we all do, then I have the ability to contract. And therefore I have the choice to enter into a contract as per the terms agreed. Therefore if the terms in the agreement include that arbitration will be the means for dispute resolution, then the Contract is the Law and there is no violation of any rights. Meaning IF I make a promise in an agreement then I should keep it according to my agreement.

Therefore if I cannot live with the terms of the contract then I should not make a use of the things governed by the contract - especially if the contract stipulates that the right of trial by jury stands waived. We are all grown ups and we each have full liability or we should anyways - and that being said - if we don't like the contract we should novate it - and if we cannot novate it, then we should not enter upon the contract if we cannot live with the terms.

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I would tend to agree with your analysis, Michael. But let me throw a few concepts and scenarios at you to see if this may coax you to look at it another way...

1. Can the right to contract supersede other "inviolate rights"? e.g. Can the right to vote be waived via contract?

2. What if the conduct complained about between the "arbitration clause parties" is unlawful? e.g. If it is alleged the defendant committed conversion of property or fraud, there is no contractual provision for that conduct. That is, unlawful conduct falls outside the scope of a contract. Would a suit for damages suffered due to unlawful conduct "bypass" the arbitration clause, or would such claims still be required to be arbitrated?

3. What if the "arbitration clause party" effectively enjoys a monopoly? For example, a utility company or performance rights organizations -- there is no where else to turn for the essential service you need, or a small group of companies that have an effective monopoly all have "arbitration clauses". These companies owe their existence and monopoly to the same government(s) that guarantee inviolate rights. In such a case, how can it be deemed that a "choice" to enter into such a contract and waive one's rights is truly "voluntary"?

What if the Policy of the organization is against the Law?

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Originally Posted by Michael Joseph

It is my comprehension that INVIOLATE means that a right or privilege is not violated. But since I have choice as we all do, then I have the ability to contract. And therefore I have the choice to enter into a contract as per the terms agreed. Therefore if the terms in the agreement include that arbitration will be the means for dispute resolution, then the Contract is the Law and there is no violation of any rights. Meaning IF I make a promise in an agreement then I should keep it according to my agreement.

Therefore if I cannot live with the terms of the contract then I should not make a use of the things governed by the contract - especially if the contract stipulates that the right of trial by jury stands waived. We are all grown ups and we each have full liability or we should anyways - and that being said - if we don't like the contract we should novate it - and if we cannot novate it, then we should not enter upon the contract if we cannot live with the terms.

That seems so matter of fact to me that I am surprised that I am even typing these words. Nevertheless, it is a truth. Its kind of like making a use of Yahoo mail and then saying I am not bound by the Terms of Use agreement that Yahoo, Inc. provided as part of the service.

Those who would say where is the claim and prove it stuff bore me to death. Fact is the men and women who have equity in Yahoo, Inc. have sweat and hard work in developing that product for their gain and there is no reason why JOHNNY COME LATELY should have any equity in their creation. Therefore anyone making a Use is subject to the contract called Terms of Use or Terms of Service that Yahoo, Inc provides. If you can't live with the contract then don't use the site.

Slavery is repugnant - yet if I consent to be a slave, then so be it. And yes, people consent to be slaves every day. It is called DEBT. Is their right of freedom violated? Not in the least!

Happiness Machines are made in Consent.

Now according to Johnny Bouvier to Violate is an act done in Force. Finding no force but rather mutual consent, I cannot see how I have been VIOLATED in regard to any right to jury trial - that is if I expressly waived that right in contract.

Of course I might be so weak minded as to beg rights of Usufruct UNDER another mans claim but then that would make me third party PRAYING under someone else's claim. Bowing a knee as it were. I find no need to bow as I have full access to Usufruct in my own claim. Nevertheless, each to his own according to his conscience.

Shalom,
MJ

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Shalom;

My objective in clarifying the 40 Quarters, rather than 10 years, is to establish in the SSA terminology that we have the insurance agreement in place and that all premiums are paid off on that policy. But there is more. Since I am floating my boat in the admiralty I also made it clear that all the other terms, with the Social Security being a "valid" income tax does not apply to this policy. It is a little difficult to discern because they obviously have not changed the 40 Quarters Paid policy but I had heard rumors that policy had changed since I tore up their card 25 years ago.

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"A cardinal principle, in which the practice of admiralty courts differs from that of courts of common law, permits the parties to a suit to prosecute and defend upon their rights as such rights exist at the institution of the action; the assignment of a right of action being deemed to vest in the assignee all the privileges and remedies possessed by the assignor. According to the rule of the common law, the injured party alone is permitted to sue for a trespass, the damages being deemed not legally assignable; and if there be an equitable claimant, he may sue only in the name of the injured party. In admiralty, however, the common practice is to have the suit conducted in the names of the real parties IN INTEREST." 1 R.C.L. § 33, pg. 424 (1914)...

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I emphasize 153 as this term of war is over now.

Attachment 1677

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John 21:11 Simon Peter went up, and drew the net to land full of great fishes, an hundred and fifty and three: and for all there were so many, yet was not the net broken.

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Notice the numbers - the Five Cube Sum Number Locks.

The first Cube Sum Number Lock after "1" is 153. I sat down to some chess with the fellow who invented computer linguistics (sold the patent used in the Speak & Spell to Texas Instruments for $1). He ran a program and sure enough, there are only 5 of them. But it is the relationships between them, as well as the numbers themselves that compose an elegant combination and interlocutory story.


Regards,

David Merrill.

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Originally Posted by Anthony Joseph

By the way...

"Jury Trial" and trial by jury are not the same.

A trial by jury is a common law right. A "Jury Trial" is a statutory privilege.

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It is very easy to convert the latter into the former, even as a jurist.

I was summoned to appear as a jurist quite some time ago. I looked up the Statutes cited on the jury summons and only provided Information (indictment) against myself that they already had from the driver license. They wanted a lot more Information (indictment) but I would not provide it for them. They wanted me to provide innovation about my character and the contract (social compact) - for me to describe myself as a resident mostly and I just would not testify against it (myself as [if] a Person). Even in the jury box they passed out a questionnaire which I left blank, leaving only the mysterious "R" on the driver license card testifying - hardly enough to indict me. The defense attorney asked at the bench (in secret supposedly but the silent courtroom hardly provided privacy) about why I left the form empty and the "judge" asked her if she wanted him to ask me why? She declined and (wisely) made sure I stayed on the panel.

The local attorney at the bench was quickly replaced by a real judge, pulled out of retirement from some five counties over, not active in the Bar. He made no more instructions about how us jurists were not allowed to inquire about the law, or to stay out of the Law Library downstairs like the attorney in the black robe did. I had no problems with the application of the law but upon the established "facts" the prosecutor was depending on us to rule emotionally and I was Foreman so we acquitted the accused man for lack of reasonable "beyond doubt" presentment. Mostly I depended on an honorably discharged police officer on the panel, in deliberation to explain "reasonable doubt" to the panel, which was quite eager to convict the defendant at first.

My point is that there are probably settings in process where one proceeds upon consent after the initial contract and if one is aware, meaning developed and using more than 10% of their mind, they can guide that arbitration clause into becoming a voluntary stipulation, where the right to trial by jury is indeed inviolate. Like the SSN, ever notice before anybody wants (for you) to use it they always ask you to recite it? - Before they may TAKE it from you for their use?


Regards,

David Merrill.


P.S. Rather than presuming the written (express) contract is set in stone; especially around inviolate and unalienable stipulations.

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Originally Posted by Jethro

I would tend to agree with your analysis, Michael. But let me throw a few concepts and scenarios at you to see if this may coax you to look at it another way...

1. Can the right to contract supersede other "inviolate rights"? e.g. Can the right to vote be waived via contract?

2. What if the conduct complained about between the "arbitration clause parties" is unlawful? e.g. If it is alleged the defendant committed conversion of property or fraud, there is no contractual provision for that conduct. That is, unlawful conduct falls outside the scope of a contract. Would a suit for damages suffered due to unlawful conduct "bypass" the arbitration clause, or would such claims still be required to be arbitrated?

3. What if the "arbitration clause party" effectively enjoys a monopoly? For example, a utility company or performance rights organizations -- there is no where else to turn for the essential service you need, or a small group of companies that have an effective monopoly all have "arbitration clauses". These companies owe their existence and monopoly to the same government(s) that guarantee inviolate rights. In such a case, how can it be deemed that a "choice" to enter into such a contract and waive one's rights is truly "voluntary"?

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Hello Jethro,

Thank you for responding. Years ago I noticed that registering to vote was an act that required my input. Meaning that I was not automatically registered just because it is presumed that I am part of a society. I had to physically cause the registration by my deed and my signature. Implied and Express Trust. In the beginning I saw voting as a duty but today I see in a different light. A vote in any society be it within a private corporation is only allowed by those who have standing to vote. Meaning that the shareholders of General Motors vote in regard to the affairs of General Motors. I see that simple expression at the crux of the matter.

I find that my trust is very valuable so I refuse to sell myself by way of deed in voting. So I wrote the county registrar and asked that the account held in voting be removed from the rolls. No problem, it was removed. Now I don't vote. A right to vote depends on the society - finding I am not a shareholder in General Motors, I lack a right to vote in its affairs.

By removing myself from the possibility of voting, I have waived that right and once the registration is terminated by my own input [remember it was my input which made the registration] then I may not vote. Does my right stand violated? I think not.

To violate one infers force of action. So if I am compelled by force upon a deed then I may claim tort or violation. However, if by my own freewill I choose to be a member of a particular society as citizen, then I chose. Perhaps I choose to declare a new society whereby my status will elevate from citizen to statehood either way I choose. If I enter into a contract and the terms agreed upon by all parties stipulate arbitration or mediation vs. litigation, then I must comply with my agreement. I see your point and there is ALOT of gray area in here for I might foresee an employee that is raped for instance - does the employee only have access to arbitration?

So I can appreciate your issue and I can see both sides of the argument. But this is in my opinion the fruits of man's inventions. For I find that in the Scriptures such an offense would require at the witness of two immediate death of the rapist without consideration of "circumstances". However is man has become an Outlaw in regard to Torah how then will he argue for protection under Torah regarding God given rights? Man is left with his agreements to his good or his harm.

Regarding Monopolies such as energy companies - Electricity - etc., I am about the work of designing a house that I intend to construct so that I have no further debt. Our goal is to have a wood stove located where heat will be drawn into the house by the air circulating systems. We intend to construct solar panels and geothermal systems [wells] to obtain electricity and to get better efficiency of heat transfer in regard to the heat pump. Our goal is to sell energy back to the Electrical company. We intend to construct sustainable cycles on the farm such that energy is transferred and not wasted. I look at the typical family in residential America. They eat their food delivered in plastic containers and then they discard the container and most of the uneaten food [minus what the dog is allowed] into the trash. This is a severe breach in the energy cycle - a complete waste.

By changing just a couple of strategies one becomes connected to the earth and disconnected with the mechanisms of commerce. If I go to a grocery store, I have no idea how the food being sold was grown. But if I grow it myself, I know with a surety the value. For instance Milk in the store is worthless as it is Pasteurized and Homogenized and those processes render the milk [in my opinion] worthless. But milk straight from the cow [raw] has great value as the anti-bodies is that milk are alive.

Please bear with my folly as I see this as connected in the philosophy of how one lives. It is about my trust. I don't trust the grocery store, so I am very careful about what I buy from those stores - which is very little. So Food, Inc. has nothing in me. I don't go to church so Religion, Inc. has nothing in me. I do not work for another man so Employment, Inc. has nothing in me. I do not sit at the feet of any guru so Education, Inc. has nothing in me. God granted me a mind so I weigh matters - and if I can't live with the terms, then I novate the contract.

Years ago i was on Texas and I took a contract for a rental car - so upon reviewing the contract - I crossed out some terms and wrote NO over them, I then qualified my signature with "Absent liability assumed and without recourse, by: Signature". Now later when I returned the vehicle the employee tried to say that a scratch that already existed was my liability. I then told him that according to the contract I signed he was wrong. He made a "big stink" and got obstinate but I patiently stood and suggested he have his boss review the contract. Upon a ten minute review the employee returned and said "have a nice day". I imagine there was a "policy" change effective immediately - but even if that was true - NOONE is going to tell me how to sign anything! That is my own deed and I will do it like I want to do it.

I desired hospital treatment - but I just could not live with the terms - so I just "X[ed]" them out and refused to be guarantor for payment. I refuse to pay. The service was rendered free of charge and the ER even wanted to perform a MRI - just to make sure. Turned out I had "strep throat". They even provided the anti-biotics free of charge. I told them the truth - I am a living soul, in Jesus Christ. If they want payment they can ask Jesus Christ for it.

Understand me I am not discounting the "gray area" and I know it exists and I hate it. But this is the fruit of a system where men standing at the head are compromised by money. For the debtor is slave to the lender. So in a sense I am not job[ed] out to another man but in another sense I am in the service of all men. For when you drive over an overpass [bridge] that I designed you benefit. When you drink water from a waterline system I designed you benefit. So my duties are compensated but where did I waive my interest in the future uses? Therefore I am in the service of my King [Yehoshuah] and my fellow living souls.

Returning full circle - if there is a clause in a contract that I cannot live with - I will novate it - but that does not mean the service provider is subject to my decrees. My novation may mean no service. However, if my Signature is an UNDERTAKING then I will certainly promise to perform only those duties that I may wish to subject myself to. If you look around you will find many of the so called contracts [two party] are in reality just undertakings [one party]. So if I choose to subject myself in my promises according to an agreement produced by another, then great. But I should do it carefully.

Furthermore in regard to my rape example, the Company might attempt to limit its liability by way of the Agreement in Arbitration; however, that in no way limits the liability of the individual. Therefore the charge of rape would issue in the Admiralty in Common Law. Like I said "gray area".

I worked as a Professional Engineer as president for an engineering company for years. We routinely helped our clients understand construction contracts which required arbitration and mediation. The contractor and the developer were both required to carry a certain amount of insurance for liability concerns and also bonds [payment and performance]. Many times I found myself called to hearings to provide testimony. The idea is of course that the matter might be settled in the hands of competent souls who have experience in construction. I myself would hate to be at the mercy of 12 idiots who can barely read.

Therefore I make a Use of the Trust. So that the estate might be preserved from an unwarranted taker. So I enjoy and appreciate arbitration and mediation; however, I do see your point. All circumstances cannot be resolved by the use of any system.

However INVIOLATE is a long way from UNALIENABLE. I can transfer a right without being violated. Of course what does God mean to an atheist and his evolution model - very little. Without God - anything goes! For there can be no God given or unalienable rights without God.

Shalom,
Michael Joseph

"They come in through the Utilities."

It occurs to me that the Constitution(s) expressly protect the right to contract much more clearly as an inviolate right, than the ability of innovation and refusal for cause.

Thanks for extensively providing your thoughts, Michael. I think we agree there are some gray areas here, which means that if the matter were brought before a court, its decision could go either way. I'd prefer a more definite outcome, so let me try to focus onto one area: whether the "arbitration clause" is binding if one of the parties has engaged in unlawful conduct.

I agree with your example that in a case of rape, that arbitration wouldn't apply and there would be individual liability for the rapists. But what about a less extreme example, such as an allegation of fraud or conversion? It would seem to me that arbitration would be limited to matters within the contract. But since there is no such thing as a unlawful contract such as contractual provisions for fraud and conversion, any such acts a party does to the other must be deemed to be outside of the scope of a lawful contract and therefore not subject to a contractual arbitration clause.

Do you see where I am going with this?

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Originally Posted by Jethro

Thanks for extensively providing your thoughts, Michael. I think we agree there are some gray areas here, which means that if the matter were brought before a court, its decision could go either way. I'd prefer a more definite outcome, so let me try to focus onto one area: whether the "arbitration clause" is binding if one of the parties has engaged in unlawful conduct.

I agree with your example that in a case of rape, that arbitration wouldn't apply and there would be individual liability for the rapists. But what about a less extreme example, such as an allegation of fraud or conversion? It would seem to me that arbitration would be limited to matters within the contract. But since there is no such thing as a unlawful contract such as contractual provisions for fraud and conversion, any such acts a party does to the other must be deemed to be outside of the scope of a lawful contract and therefore not subject to a contractual arbitration clause.

Do you see where I am going with this?

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Jethro,

I like to frame arbitration as Conflict Resolution. There exists a conflict when one party does not perform within the scope of the contract so then that begs what are the Promises established in the contract. And are those legal duties to keep said Promises being performed? If no, then since I agreed to arbitration, I must go there for resolution. I did not like the terms of my contract to act as a Professional Engineer, so I changed the manner in which I contract.

Yes I see the path you have set out upon. This goes to Severability Clause. And I find that if the Arbitration Clause fails the contract might still be valid but Conflict Resolution is at dispute - which may lead to litigation. I can see both the pros and the cons of arbitration and mediation. According to the Scriptures that I try to live by:

We are to go in privacy first [one on one], then if that fails, we go with a witness, [Mediation] and if that fails we go to the Assembly [Arbitration] and if that fails we go to Law [Litigation]. Nevertheless, I can see that no system of conflict resolution is perfect and there are cases where Arbitration would fail even in the face of both parties agreeing to its use. One sees immediately that one party might unfairly benefit from mediation or arbitration - thus the scales are tipped and we see unfair balances. Especially if one of the parties has a relationship with the Arbitrator due to much usage. This of course leads to much usurpation of that system.


Shalom,
MJ

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Originally Posted by Michael Joseph

Yes I see the path you have set out upon. This goes to Severability Clause. And I find that if the Arbitration Clause fails the contract might still be valid but Conflict Resolution is at dispute - which may lead to litigation. I can see both the pros and the cons of arbitration and mediation.

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I take it you agree that it may be possible the arbitration clause may not apply in certain circumstances like I have suggested. I'm glad to hear that since that is my primary concern.

The problems I see with arbitration are:

1. No appeals process.
2. Cost - it can be very expensive! More so than going to court (at least for me).
3. The controlling "law", standard of review, etc. may be arbitrary. By what standard is the manner decided, and what remedy is available should that standard be violated?
4. As you pointed out, arbitrator bias -- not sure if there is any enforceable provision for arbitrator neutrality.

There are probably more problems I can't think of.

I agree with the Scriptural mode of conflict resolution. But how does that apply when dealing with non-believers (or worse, outright wicked folks)?

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Originally Posted by Jethro

Many (most?) State constitutions contain the following clause:



However, many contracts include "mandatory" arbitration clauses; that is, language to the effect that in the event there is a dispute, the parties agree to binding arbitration with no other recourse.

Considering that the People's Supreme Law states trial by Jury is inviolate -- something that cannot be violated, period -- does anybody have any experience with cases or authorities in which it was decided whether a contractual agreement to arbitration supersedes the Constitutional guarantee?

Thanks, everyone.

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Have you heard of Karl Lentz? Perhaps he may be able to shed some light on this subject matter.

http://broadmind.org/

Shalom

Hello and welcome AuAgen;


It is wonderful to have your contributions.

Quote:

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Originally Posted by AuAgen

Have you heard of Karl Lentz? Perhaps he may be able to shed some light on this subject matter.

http://broadmind.org/

Shalom

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Lol, Karl will not have patience with questions about interpreting their codes, case law, etc..

If someone calls his show asking about that stuff, he will make background noise while they're talking, then call them "sir" as often as possible. LOL

Suggestion to those curious about Karl's teachings: listen to several of his [3-4 hour long] calls on Talkshoe before calling him so you know how to shape your question and what you're getting into. :-)

Quote:

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Originally Posted by Jethro

I'd prefer a more definite outcome, so let me try to focus onto one area: whether the "arbitration clause" is binding if one of the parties has engaged in unlawful conduct.

But what about a less extreme example, such as an allegation of fraud or conversion? It would seem to me that arbitration would be limited to matters within the contract. But since there is no such thing as a unlawful contract such as contractual provisions for fraud and conversion, any such acts a party does to the other must be deemed to be outside of the scope of a lawful contract and therefore not subject to a contractual arbitration clause.

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I would agree with you here, Jethro, without knowing anything of the details about which you speak. Fraud vitiates a contract. I would think that allows one to proceed in law. The fraud must first be proven, though.

Based on the following maxims of law:

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

No action arises on an immoral contract.

Law arises out of fact; that is, its application must be to facts.

Out of fraud no action arises.

Advice, unless fraudulent, does not create an obligation.

It is a fraud to conceal a fraud

A mandate of an illegal thing is void.

Equal knowledge on both sides makes the contracting parties equal.