There is a legal term for passing legal documents through the hands of potentially hostile or incompetent individuals in sealed envelopes by passing Directly from legal rep hands--_ hostile/incompetent individual hands --_ final recipient hands. Since these documents were in the possession of the H/I individual, even momentarily, they are considered to have knolwedge and agree to the documents or yield the rights to review. It is an old way to process documents. I believe it has something to do with 'fencepost process' or 'neighbor' Can you give me anything else to pursue to determine what this is called and find out about it?
07/23/2009 |
Category: Contracts |
State: California |
#17716
I am unable to locate a reference to a specific legal term or legal theoy. It will depend in part on the context and what is sought to be gained. An offeror making an offer to make an agreement must have knowledge of the terms being proposed. To make legal service of papaers on someone, knowledge of the contents isn't required.
It will be a matter for the court to determine the enforcability of the contract, based on all the facts and documents involved. Two important requirements for a contract to be valid are the parties' mutual assent and acceptance of the contract by both the parties. A contract requires a knowing acceptance of the terms it contains. Typically, acceptance is made by the parties signing the contract. The parties' signature on the contract is only a proof of the fact that the parties have mutually assented to the terms stated in the contract and that the terms are acceptable to them. Even if one of the parties has not signed the contract, the contract will be valid and binding upon such party if he accepts it and if both the parties act in reliance on it as a valid contract. If acceptance is lacking, a valid contract cannot be formed. A party may not unilaterally change the terms of a contract without the acceptance of the other party to the contract.
Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. Fraud may also by made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.
Constructive fraud is considered fraud under the law although deceptive intent is missing because it has the same consequences as an actual fraud would have. It is a finding imposed in the interest of fairness and justice, such as to prevent violation of a public or private trust or confidence, the breach of a fiduciary duty, or the use of undue influence.
Black's law dictionary defines constructive fraud as "all acts, omissions, and concelaments involving breach of equitable or legal duty, trust or confidence, and resulting in damage to another, 38 Cal Rptr. 148, 157; i.e. no scienter is required. Thus the party who makes the misrepresentation need not know that it is false.'"
A
scheme or artifice to defraud is not capable of precise definition, but generally is a plan or trick to deprive another of the intangible right of honest services or obtain, by false or fraudulent pretenses, representations, or promises, money or property from someone. It is the deprivation of something of value by trick, chicane, or overreaching. The concept of 'fraud' includes the act of embezzlement, which is the fraudulent appropriation to one's own use of the money or goods entrusted to one's own care by another. A ‘scheme to defraud’ connotes some form of planning or pattern.
