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What level of simplistic detail is required to constitute proof ?
There's bound to be something/much which is not clear in this
post, which [after toning down] I want to send to a 'consulting'
lawer. Please criticise, especially that which is unclear.
--------
I've recently become aware of the: "the party had to allege and prove
XYZ". Previously I though it meant that the legal-boys: judges and
counsel; knew that eg. thursday followed wednesday, and that they
just had to pretend that they didn't know, unless the party 'alleged
such'. Now I've come to realise that they REALLY don't know !!
Remarkably, legal training/experience has managed to clear
their brain.
Reasons why I hate spelling out obvious implications are:
* I don't like people insulting my intelligence by 'filling in the dots'
kindergarten style, so I don't 'fill in the dots' when addressing others.
* Once I've shown you the route, I'll never know if/that it is obvious
to others as well. You can go from ignorance to knowledge, but
not in the reverse direction [except with legal training/experience].
* And it's possible that I influence you wrongly by showing my route,
where you might have a more valid view if you found it without
prompting. It would be so much more valuable if it was
independantly volunteered, instead of just agreed to.
These are some of the reasons why I'll delay giving a detailed
[simplistic] justification for my argument for the Jefferys case.
I don't know if you and/or other people acknowledge having
knowledge which is not yet articulated formally - like how you
might know that your wife is annoyed, without being able to
easily explain it.
Instead I'll set out some of the formal reasons why I knew that
all the legal boys were wrong [against my contention] in the
TLC case. These ideas were submerged intuitively in my lay-man's
mind.
* One of the most fundamental principles of Westerm/Roman law
must be that 'the accused must have a chance to defend himself'.
* Which implies that the accusation must be specified unambigiously.
* A potential complication exists, when 'conditions are changing
over time' eg. was the party 'out of age limit at the relevant time'?
The canonical case which I've contrived is this chronological sequence:
1. I'm accused and conviced of killing the cat.
2. I appeal.
3. the cat is publicly found to be alive and well.
4. I do kill the cat under conditions of unambigious observation/evidence.
5. the appeal is heard.
Clearly my appeal should succeed, since 3. proves that the conviction
at 1. was invalid.
The act at time 4. is to be handled by a different charge/accusation.
Now law intends to settle disputes, and therefore pure logic needs
to be sacrificed for expediency some times.
In the case of a debt dispute the law intends the parties to be able to
'settle and walk away from each other'. A complication arises when
the debt is "moving" over time, because the debt may be of different
amounts at the time of initiating the legal action and when the
action is judged. So although 'the cat was alive at time 1' in order
to settle the matter we consider the state of the 'cat at time 4'.
Accordingly it is common to allow 'adjustment of the claim',
apparently in some jurisdictions even at the hearing/judgment.
In casu, the action was intiated by the [improper] letter of demand.
Ie. that was what was alleged and what was [intended] to be
disproved, ie. the [date of] cause of action.
In casu, where the creditor is the municipality and:
1. legislation exists, so that no fixed property transfer can occur
without a clearance certificate form the municipality, it is not
possible for the debtor to abscond. So the 'man buys a horse
and owes a debt' modification of pure law for expediency,
to settle before he absconds, doesn't apply.
2. when the disputed debt is 1% of the value of the property
which the municipal creditor has as absolute security, the
need to 'settle before riding off' becomes absurd.
3. there is NO way that the captive debtor can ever settle, and
be free of the municipal creditor, because the municipality has
permanent control. Even a spouse or a child is not locked so
permanently, as the property/debtor to the municipal authority.
4. Since the payment must be after consumption and billing,
the debtor is always/normally in debt for the latest balance.
5. Appelate decision[s] pointing out that 'council is not to simply
act acording to normal commercial rules'.
So we see that shoe-horning the 'man buys a horse for 3 crowns'
legislation to the TLC case is absurd. IMO this comes from 'matching
phrases - clerk style' because of inability to work from first principles.
In casu the creditor's claim was faulty [as part of the national
billing chaos, which is/was public knowledge] at the time of the
[improper] demand letter. And all further accounts up to the
summons [which wasn't received] were overcharged - caused
by the same computer mistake [yes, blame the computer].
All except legally trained persons know that if your starting balance
is say credit and the following 4 transactions are all 'credit', then
the final [after 4 transactions] can't be debit.
Of course the above logic is now all confirmed by Ordinace 17 s 49.
So we see that in 1939 they had it all worked out and layed down.
But I have to sleep at night knowing there are more legal-people
being created every day.
Thanks for any crit/advice, possibly also posted to:
easlab AT absamail . co . za
== Chris Glur.
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news@absamail.co.za wrote:
What level of simplistic detail is required to constitute proof ?
There's bound to be something/much which is not clear in this
post, which [after toning down] I want to send to a 'consulting'
lawer. Please criticise, especially that which is unclear.
Well, you need to completely re-write it. At the moment it doesn't
explain what it wants, nor make clear what actual set of circumstances
is of interest; rather it rambles through a generalised criticism of the
way that the law is imagined to approach hypothetical cases.
Incidently it would be a matter of judicial notice, and of such
screaming obviousness that no-one would bother mentioning it, that
Thursday follows Wednesday.
In my jurisdiction a judge might indicate they know a particular road
junction well and that it was obviously dangerous, without anyone having
to go through a detailed proof.
You obviously work in a dumb jurisdiction.
Francis
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n Mon, 30 May 2005, news@absamail.co.za wrote:
What level of simplistic detail is required to constitute proof ?
For a party who wants to prevail in a lawsuit, at least the amount at
a time and in a form suitable to the intended audience - in a lawsuit,
whatever is the case specific combination of judge or jury -
sufficient to persuade that audience to decide in favor of that party
rather than for the other.
There's bound to be something/much which is not clear in this
post, which [after toning down] I want to send to a 'consulting'
lawer. Please criticise, especially that which is unclear.
--------
I've recently become aware of the: "the party had to allege and prove
XYZ".
For someone who has been making the sorts of postings for years
concerning lawsuits to which you have been a party and failed to
prevail, that you now say you have learned this only recently is a sad
self-indictment.
Previously I though it meant that the legal-boys: judges and
counsel; knew that eg. thursday followed wednesday, and that they
just had to pretend that they didn't know, unless the party 'alleged
such'. Now I've come to realise that they REALLY don't know !!
Remarkably, legal training/experience has managed to clear
their brain.
The legal boys (and girls) know that Thursday follows Wednesday and in
cases in which it is appropriate to do so will take judicial notice of
this fact.
* One of the most fundamental principles of Westerm/Roman law
must be that 'the accused must have a chance to defend himself'.
This is a too simplistic overstatement. You continue to omit "fair"
and "reasonable" - a "fair chance" and a "reasonable chance" - and so
realtedly raise but continue not to answer, Has the accused acted in
some manner by which he will have forfeited the otherwise available
chance to defend himself? (and all readers familiar with your prior
postings will have determined long ago that "Yes" is the answer to
that question).
* Which implies that the accusation must be specified unambigiously.
It is a fundamental principle of Western/Roman law, and also of the
law in your country, that a civil defendant must be given sufficiently
reasonable notice of the claim against him and opportunity to be heard
in response. It is also a principle that plaintiff and the courts
amply complied with in the lawsuit against you to which you refer.
* A potential complication exists, when 'conditions are changing
over time' eg. was the party 'out of age limit at the relevant time'?
The case to which you refer was not complicated at all. It was an
actually quite elementary lawsuit in which a service provider
plaintiff claimed that during the periods at issue you purchased and
accepted services for which you agreed but then failed to pay.
The canonical case which I've contrived is this chronological sequence:
1. I'm accused and conviced of killing the cat.
2. I appeal.
3. the cat is publicly found to be alive and well.
4. I do kill the cat under conditions of unambigious observation/evidence.
5. the appeal is heard.
Clearly my appeal should succeed, since 3. proves that the conviction
at 1. was invalid.
Assuming with respect to this hypothetical case that you did not
engage in conduct that contributed to the failure to find the cat
before it was found, your appeal should succeed, but not necessarily
because the conviction was invalid.
You do not - not even theoretically - contrive enough of the facts
about this canonical prosecution that would enable anyone reasonably
concluding that the conviction was not "valid" although, if what
relatedly theorized above is that you were given whatever notice of
the alleged crime and a fair opportunity to defend, including to call
witnesses and cross-examine prosecution witneses, etc., etc., as
required by the law applicable in the jursidiction and that the
prosecution did not knowingly or otherwise wrongfully conceal the
cat's whereabouts and, instead, proceeded with the prosecution in a
good faith belief based on a diligently made investigation that you
killed the cat and that the witnesses against you did not deliberately
perjure themselves (even if they were mistaken in their testimony to
the effect that the cat was dead), the trial and conviction would
have been "valid" in the law significant sense of that term.
But in such event, the appeal would succeed because it would not be
justto allow the conviction to stand given the fact of no. 3 above.
This is not a matter of pure logic but, instead, of what the law
provides.
The act at time 4. is to be handled by a different charge/accusation.
This generally is so, but not necessariy as a matter of pure logic.
Logically, there are any number of models - fair ways - that deal with
how and when the act at time 4 could be handled.
Now law intends to settle disputes, and therefore pure logic needs
to be sacrificed for expediency some times.
The legislatively prescribed standards and judicial decisions that
apply to the lawsuit against you to which you here refer are quite
logical, reasonable, and also fair.
The problem you faced was not one of pure logic nor of deficiencies in
the law applicable to your case nor in the intellectual or other
quality of the legal-boys (and, I think I recall you also earlier
said, at least one woman judge or magistrate) you encountered but,
instead, of self-chosen disregard of quite clearly stated and easy to
understand principles informing how and when a defendant like you may
obtain a trial.
In the case of a debt dispute the law intends the parties to be able to
'settle and walk away from each other'.
Not necessarily. What the law intends is that whether the debt at
issue is owed and, if so, in what amount be determined by settlement,
if the parties choose that option, or by the court.
A complication arises when
the debt is "moving" over time, because the debt may be of different
amounts at the time of initiating the legal action and when the
action is judged. So although 'the cat was alive at time 1' in order
to settle the matter we consider the state of the 'cat at time 4'.
Accordingly it is common to allow 'adjustment of the claim',
apparently in some jurisdictions even at the hearing/judgment.
In an ongoing running account or like relationship in which, for
example, the plaintiff is continuing at defendant's request to provide
more or less the same sorts of services to defendant in exchange for
defendant's promise to pay for them - a request and agreement that may
be found as a result of defendant's conduct, such as defendant's
failure to reject rather than to continue to accept and use the
services in question - it is very common to supplement the claim sued
upon rather than to require separate successive lawsuits.
In casu, the action was intiated by the [improper] letter of demand.
Ie. that was what was alleged and what was [intended] to be
disproved, ie. the [date of] cause of action.
Your misuse in this context of the term "cause of action" has earlier
been so thoroughly explained by numerous persons that it is
unnecessary to revisit this issue here. Suffice to say that there are
none so blind as those who will not see.
In casu, where the creditor is the municipality and:
1. legislation exists, so that no fixed property trans
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