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Thread: Arbitration clauses vs. inviolate right to Jury trial

  1. #11
    Quote Originally Posted by Michael Joseph View Post
    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.
    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"?

  2. #12
    What if the Policy of the organization is against the Law?

  3. #13
    Quote Originally Posted by Michael Joseph View Post
    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

    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.

    "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. ยง 33, pg. 424 (1914)...
    I emphasize 153 as this term of war is over now.

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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.

    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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    Last edited by David Merrill; 05-06-14 at 02:48 PM.

  4. #14
    Quote Originally Posted by Anthony Joseph View Post
    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.


    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.
    Last edited by David Merrill; 05-06-14 at 03:20 PM.

  5. #15
    Senior Member Michael Joseph's Avatar
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    Quote Originally Posted by Jethro View Post
    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"?
    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
    The blessing is in the hand of the doer. Faith absent deeds is dead.

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  6. #16

  7. #17
    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.

  8. #18
    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?

  9. #19
    Senior Member Michael Joseph's Avatar
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    Quote Originally Posted by Jethro View Post
    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?
    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
    The blessing is in the hand of the doer. Faith absent deeds is dead.

    Lawful Money Trust Website

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  10. #20
    Quote Originally Posted by Michael Joseph View Post
    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.
    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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