Article III § 2 clause 1 (cont’d):
(3) Unjust Enrichment:
(a) The Case:
Here’s an example case of unjust enrichment: Suppose Nate lives near a lake in America’s north woods. Suppose this lake does not have any navigable inlets or outlets, and is therefore not under an "admiralty and maritime Jurisdiction". Suppose issues like boat traffic, algae control, pier size, pollution control, and other such issues are governed by a private consortium of concerned citizens, but the lake is considered by all to be a commons. — Nate enjoys going to the lake from time-to-time to canoe peacefully at dawn and dusk. While canoeing across the lake one evening, he finds a plastic bag floating on the surface. As a concerned citizen, he picks it up to relieve the lake of yet another slob’s debris. When he gets back to shore, he opens the bag to see what it is before he throws it in the dumpster. He is dumbfounded to see that it is about $100,000 in Federal Reserve Notes (frns). Over the next couple of days, Nate is overwhelmed with visions of what he could do with this windfall. On his third day of having this cache of frns, Nate sees a notice in a local newspaper in which Jeffrey Lament begs for the return of what he claims is his money. Nate thinks about it and decides he’d rather keep it. He thinks, "I didn’t steal it. I found it on the commons. Finders, keepers. Losers, weepers.". — After a couple of weeks, Jeffrey somehow discovers that Nate has the frns. So Jeffrey sues in a local court for recovery of the frns from Nate. Jeffrey knows from talking to his lawyer that he can’t get his money back by filing criminal charges against Nate, because Nate hasn’t committed a crime. In other words, the damage from which Jeffrey is suffering is self-inflicted. He is guilty of losing the frns, not Nate. Jeffrey can’t sue himself to recover something he no longer has. And he can’t sue Nate unless Nate is somehow obligated or culpable. If Nate had stolen the frns, then that would have been a gross delict, and Jeffrey could have filed criminal charges against Nate, and Jeffrey could have gotten both retribution against Nate and restitution from Nate. If Nate had acquired the frns through fraud, then that would have been a subtle delict, and Jeffrey could have filed a civil suit against Nate, and probably gotten restitution. But Nate didn’t do anything other than find the frns, and keep what he found. Jeffrey has no grounds for suit in an at law court, or in a jural court, unless some extraordinary legal mechanism is discovered. If Jeffrey and Nate had a contract of some kind, where that contract covered situations like this, then Jeffrey could take his case to an ecclesiastical court. But they don’t have a contract like that. So what’s going to happen?
(b) Unjust Enrichment – legal fictions:
His lawyer tells Jeffrey that law holds that there is a fictitious contract between Nate and Jeffrey. He says that this legal fiction obligates Nate to return the frns to Jeffrey. 2 The lawyer tells Jeffrey that he can file suit in either a law court or an equity court, and in either type of court, if Jeffrey can prove himself to be the original owner, such court will certainly find in his favor, and put the frns in his hands.
Traditional Anglo-American jurisprudence claims that there is, indeed, something called a legal fiction, which is sometimes called a fiction of law. A legal fiction is defined as an "Assumption of fact made by court as basis for deciding a legal question. A situation contrived by the law to permit a court to dispose of a matter, though it need not be created improperly". 3 A fiction of law is defined as "An assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place. An assumption, for the purposes of justice, of a fact that does not or may not exist. A rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible.". 4
Between Jeffrey and Nate, there is no real contract – no contract in fact – and there is no delict. Is it possible that the court could discover or invent a fiction in this situation that would give relief to Jeffrey Lament? If so, then if this fiction is legal in traditional Anglo-American jurisprudence, then the fiction must also abide by the maxim, "A fiction of law injures no one.". 5
(c) Unjust Enrichment – defining "contract":
In traditional Anglo-American jurisprudence, for a contract to be valid, it must be entered voluntarily, intentionally, and knowingly, i.e., via consent. This sounds simple enough. But because many muddle-headed legal "experts" have such difficulty in defining contract, we’ll start searching for a definition by recognizing what a contract is not. If a contract is void ab initio – null from the beginning – then it never existed. In traditional Anglo-American jurisprudence, there are five valid reasons for voiding or nullifying a contract. These in effect delineate what a contract is not.
— (i)lack of capacity: If a twelve-year-old makes a contract with an adult, the contract may have been entered voluntarily, intentionally, and knowingly, but since one of the parties is a minor, the contract will not be enforced against the minor to the minor’s detriment. It might be enforced as positive law against adult parties, as though it were a perfectly valid contract. But it won’t be enforced against the minor, at least in most American courts.
— (ii)coercion: For the contract to be valid, all parties must have entered it voluntarily.
— (iii)fraud: Fraud is "an intentional perversion of the truth for the purpose of inducing another . . . to part with some valuable thing. . . . ". 6 Fraud is usually classified into two kinds: actual fraud and constructive fraud. "Actual fraud consists in deceit, artifice, trick, design, some direct and active operation of the mind. . . . Constructive fraud consists in any act of commission or omission contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.". 7 Constructive fraud is also called fraud in law, because it is fraud construed from existing law. Fraud in law is contrasted with fraud in fact, where fraud in fact is the same thing as actual fraud. In contracts, actual fraud is usually more difficult to prove than constructive fraud. This is because proving actual fraud demands proof of intent (which is usually difficult) or establishment of a pattern of behavior. In contrast to this, constructive fraud is where all the details of the contract are not revealed because one of the parties is withholding information.
— (iv)mutual misunderstanding: If there is mutual misunderstanding, then that’s grounds for voiding a contract under the common law.
— (v)misrepresentation: "A ‘misrepresentation’ . . . is a false statement of a substantive fact, or any conduct which leads to a belief of a substantive fact material to proper understanding of the matter at hand, made with intent to deceive or mislead.". 8
If there is some contract between Jeffrey Lament and Nate, the way Jeffrey’s lawyer claims there is, do any of these reasons for voiding the contract apply? — From a rational perspective, there is absolutely a good reason. Nate is being coerced into this fictional contract by the police powers of the court. From Nate’s point of view, anyone should be able to see that he is being coerced, that coercion is wrong, and that this fiction of law is in fact injuring him by depriving him of his windfall. — But according to the definition of fiction of law, such a fiction cannot be refuted. That’s because a fiction of law is defined as "A rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible.". 9 So if Jeffrey’s lawyer is correct, when Jeffrey files suit against Nate, the court will find that there is a fictitious contract between Nate and Jeffrey, and any claim by Nate that he is being coerced into this fictitious contract will be ignored, and will not be heard by the court, except with a deaf ear. As far as the court is concerned, its legal fiction trumps Nate’s claim to coercion. The court believes that such fictions of law "are of an innocent or even beneficial character, and are made for the advancement of the ends of justice. They secure this end chiefly by the extension of procedure from cases to which it is applicable [(in this case, contracts)] to other cases to which it is not strictly applicable, the ground of inapplicability being some difference of an immaterial character.". 10 — So if Jeffrey’s lawyer is correct, the court will find that the lack of a contract between Nate and Jeffrey is "of an immaterial character.". In other words, the fact that there is no contract in fact is irrelevant and immaterial because the court intends to create a contract out of thin air, for the sake of pursuing its vision of justice. — Creating fictions in order to procure justice is equivalent to claiming that the end justifies the means. Tyrants have used this logic for centuries to pursue their special visions of justice.
Now that we have some idea about what a contract is not, can we determine what a contract is? Some legal "experts" claim that contracts are beyond definition. For example, "A learned writer has said, in discussing the proper definition of contract, that ‘if we seek to build up a definition of "contract" which shall include all things that have been called contracts and shall exclude all things that have been held not to be contracts, the task is evidently impossible. . . . Any definition of contract therefore must be either arbitrary or inexact.’". 11 Such confusion derives largely from attempts to relegate consent to irrelevance, as in the example of Nate’s fictitious contract with Jeffrey. But there are also other reasons for this confusion.
Some "authorities" claim that consideration is irrelevant to the definition of contract. For example, "The consideration is not properly included in the definition of contract, because it does not seem to be essential to a contract, although, it may be necessary to its enforcement." 12
Generally, the definition of contract has remained relatively unsettled for centuries, and different jurisdictions have slightly different ideas about how to define contract, how to categorize contracts, and how to prioritize them. One "authority" says a contract is "An agreement by which two parties reciprocally promise and engage, or one of them singly promises and engages to the other, to give some particular thing or to do or abstain from doing some particular act.". 13 Another "authority" says it’s a "A voluntary and lawful agreement by competent parties, for a good consideration, to do or not to do a specified thing.". 14 The most popular American law dictionary in the early 20th century defines the qualities of a contract like this: "[B]oth parties must assent [(or consent)] to fill its terms . . . . To the rule that the contract must be obligatory on both parties, there are some exceptions: as the case of an infant, who may sue, though he cannot be sued, on his contract . . . . There must be a good and valid consideration, which must be proved though the contract be in writing . . . . There is an exception to this rule in the case of bills and notes, which are of themselves prima facie evidence of consideration. And in other contracts (written), when consideration is acknowledged, it is prima facie evidence thereof, but open to contradiction by parol [(oral)] testimony. There must be a thing to be done which is not forbidden by law, or one to be admitted which is not enjoined by law. Fraudulent, immoral, or forbidden contracts are void. A contract is also void if against public policy or the statutes, even though the statute be not prohibitory but merely affixes a penalty . . . ." 15 — From the hermeneutical prologue’s point of view, this latter definition is fairly reliable. But there are several serious problems with it: (i)Regarding something in a contract that "is not forbidden by law", what if the law is wrong, and immoral, and stands in violation of biblical standards of morality, and the term in the contract that is "forbidden by law" is a corrective to the flaw in the law? Is the contract lawfully a contract under such circumstances? (ii)Regarding "immoral" terms in a contract, who is qualified to judge morality in a secular social compact? (iii)Regarding "forbidden" terms, it’s safe to assume here that Bouvier’s is speaking of a malum prohibitum. If something is bad simply because so-and-so says it’s bad, and not because it is forbidden by human law prescribed by the global covenant, then has a given party to the contract consented to abide by this malum prohibitum? (iv)The two breeds of "prima facie evidence" of consideration mentioned above are implicitly treated as plain consideration by the hermeneutical prologue.
The most popular law dictionary of the late 20th century says that a contract is "An agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.". 16 Although this definition is more concise, it covers essentially the same ground and has essentially the same problems as Bouvier’s definition. We’ll summarize these definitions by claiming that a contract has these characteristics: A contract has (i) terms ("subject matter"); (ii)"competent parties" (All parties have capacity, meaning that they aren’t minors or mentally ill or disabled in some other respect.); (iii)"legal consideration" (In other words, valuables are being exchanged, and this set of valuable things is recognizable as valuable in a court.); (iv)agreement by all parties to the terms (i.e., mutual consent, assent, agreement, regarding the terms, given by all parties); and (v)"mutuality of obligation".
We’re convinced that the variety of notions about the nature of contracts, espoused even by "authorities", derives from numerous sources, but from two above all others. We believe that it derives from muddled thinking (i)about distinctions between gifts, agreements, and contracts; and (ii)about the centrality of mutual consent to the existence of a contract in fact. In hopes of gaining clarity about the nature of contracts, we offer our own definition, which is based on the process of contract-formation, and on the differences between agreements, gifts, and contracts. — A contract is formed by (a)mutual offers, (b)mutual acceptances, and (c)mutual considerations. — If Joe Blow sets up a fruit-vending stand at the intersection of two dirt roads, his act of setting up the stand and stocking it with produce is an act of making an offer of his produce to passersby. When Jack Stark stops and says he wants two watermelons, he’s making an offer to Joe. They are in an offer feedback loop with one another, mutually searching for the terms of their contract. When Joe responds to Jack’s offer by saying, "I’m charging three dollars a melon."; and Jack responds by saying, "I’ll give you two and a half."; and Joe responds by saying, "Two seventy-five."; and Jack responds by saying, "OK!"; they are continuing their offer feedback loop in search of mutual agreement. When they reach mutual agreement, they have each consented to the terms, where the terms define what’s necessary to consummate their contract. The contract is consummated through exchange of mutual considerations. The considerations always consist of benefits to be received and obligations to be rendered. The obligations always contain promises. The terms of their informal contract obligate Joe to give two watermelons to Jack, and they obligate Jack to give five dollars and fifty cents to Joe. The terms indicate that the benefit to Joe is receipt of the money, and the benefit to Jack is receipt of the two watermelons. The contract is consummated when the exchange of considerations is completed. — Common sense demands that all contracts follow this pattern. In other words, according to natural law, all contracts follow this pattern. If the contract is not consummated immediately, it may be important to write the contract down so that it can be adjudicated. It may also be necessary to stipulate penalties for non-performance, or mal-performance. No doubt contracts can get extremely complex. But no matter how complex they may get, they always follow this simple pattern. Otherwise they are not contracts. There are potentially countless objections to the claim that all contracts follow this pattern. Endeavoring to address all such objections is a monumental task that is far beyond the scope of this inventory. Nevertheless we’ll address two such objections briefly:
(i)Some legal authorities make a radical distinction between contracts and sales, claiming that contracts have promises, while sales do not. 17 Our response is to claim that sales are contracts because they do contain promises. In a sale, the duration between the initial offer and the consummation of the consensual promises might be reduced to the infinitesimal, but that doesn’t mean that the promises don’t exist. It merely means that they are fulfilled quickly. Sales always have (a)an offer feedback loop, (b)mutual acceptance, and (c)mutual consideration, Likewise, they always have a set of promises, even if the promises may be difficult to see because of the short duration. In contrast to a sale, a gift is not a contract because a gift lacks one of the three essential ingredients. In a gift, there is a one-sided offer and a one-sided consideration. If Jack stops at Joe’s fruit stand, and says, "I want two watermelons.", and Joe says, "They’re free.", Joe is making an offer, but Jack is not offering anything in return. This gift has mutual acceptance, because Joe accepts the terms of the transaction, and so does Jack. Since consideration is composed of benefits and obligations (where the latter contains a set of promises), the benefit flows from Joe to Jack, but it doesn’t flow reciprocally, and there is no apparent promise or obligation on either side. 18 There is mutual agreement about the terms of this gift, but it lacks a mutual offer and mutual consideration. — Black’s defines agreement as "A coming together of minds; a coming together in opinion or determination; the coming together in accord of two minds on a given proposition. . . . Although often used as synonymous with ‘contract’, agreement is a broader term; e.g. an agreement might lack an essential element of a contract.". 19 People can agree that the moon is made of Swiss cheese, but such an agreement imposes no obligations that are recognizable in a court, and the parties to the agreement receive no benefit that is recognizable in a court, and there are no promises. So most courts would treat such an agreement as frivolous, and outside its jurisdiction. So even though a promise exists in a sale, even if difficult to discern, and even though a promise may also exist as part of a gift, that doesn’t mean that the promise makes the gift into a contract.
(ii)Some legal authorities may claim that (a)offer feedback loop, (b)mutual acceptance, and (c)mutual consideration, are inadequate because some contracts are never intended to be consummated. For example, some corporations are designed to have a perpetual existence, meaning that they are not intended to be consummated the same way that a sale is consummated, or that some other short-term contract is consummated. But this is a bogus claim because a reasonable claim to perpetuity is a claim to an indefinite duration, not a claim to an infinite timeline.
In an imperfect universe, the infinite and the infinitesimal may have mathematical value, but they have no value in the real world unless they go to their limits. A promise may have a minute duration, but that doesn’t mean that it doesn’t exist. Likewise, a promise may have an indefinite duration, but that doesn’t mean that it exists infinitely. Any legal entity that fails to have (a)an offer feedback loop, (b)mutual acceptance, and (c)mutual consideration is not really a contract. Likewise, any claim, by legal experts, that some common legal entities are not contracts needs to be scrutinized carefully before accepting their claim as correct. 20
With this understanding of what a contract is, we can look at the Constitution to see if we can discover its view of contracts. According to the supreme Court, "Contract is used in the United States constitution in its ordinary sense as signifying the agreement of two or more minds, from considerations proceeding from one to the other, to do, or not to do, certain acts. Mutual assent to its terms is of its very essence: it does not extend to a judgment against a city for damages suffered from a mob (given by statute)". 21 Note this: "Mutual assent [(consent)] to [the contract’s] terms is of its very essence". Also note that contracts, according to traditional constitutional law, do not include judgments made by a court. A judgment is "The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties.". 22 If parties go to court to resolve a dispute, but there is not an obvious dead, damaged, or injured party, then they have in essence agreed to resolve their dispute in a broadly defined ecclesiastical court. They have thereby entered a contract implied in fact, to abide by the findings of the court. The judgment of the court is a direct product of that implied contract. Since the Constitution (according to Louisiana ex Rel. Folsom v. Mayor of New Orleans, 109 U.S. 285 (1883)) excludes judgments from its view of what constitutes a contract, it’s reasonable for us to wonder whether the fictitious, judgment-created contract imposed on Nate by the court to which Jeffrey appealed is a legitimate contract.
(d) Unjust Enrichment – categorizing contracts:
Before we jump to any final conclusions about what the Constitution says, what constitutional law says, or what the best combination of divine law and natural law says, about fictions of law and unjust enrichment, we should look more closely at the categories of contracts, for the sake of ensuring that whatever conclusion we make is made on solid ground. According to Bouvier’s, contracts at common law are categorized into (i)contracts of record, (ii)contracts by specialty, and (iii)simple or parol contracts. "At common law, contracts have been divided ordinarily into contracts of record, contracts by specialty, and simple or parol contracts. The latter may be either written (or sealed) or verbal; and they may also be express or implied. . . . ‘The only difference between an express contract and one implied in fact is in the mode of substantiating it. An express agreement is proved by express words, written or spoken . . . ; an implied agreement is proved by circumstantial evidence showing parties intended to contract’". 23
— (i)A contract of record is "one which has been declared and adjudicated by a court having jurisdiction, or which is entered of record in obedience to, or in carrying out, the judgments of a court." 24 — "These are not properly speaking contracts at all, though they may be enforced by action like contracts." 25 — If PartyX sues PartyY, and the judgment of the court is that PartyY should pay PartyX thus-and-such, then that judgment might be enforced as though it were a contract, i.e., a contract of record.
— (ii)A specialty contract is "A contract under seal [such as deeds and bonds]. . . . A writing sealed and delivered, containing some agreement. A writing sealed and delivered, which is given as a security for the payment of a debt, in which such debt is particularly specified.". 26 "They are not merely written, but signed, sealed, and delivered by the party bound. . . . In the seal, the distinction with regard to specialties has been preserved intact except when abolished by statute. In Ortman v. Dixon, 13 Cal. 33, it is said that the distinction is now unmeaning and not sustained by reason.". 27 So "in common usage this term is often used to denote an express or explicit contract.". 28
— (iii)A simple contract is "one that is not a contract of record and not under seal; it may be either written or oral, in either case, it is called a ‘parol’ contract, the distinguishing feature being the lack of a seal.". 29 Simple contracts are "by parol (which includes both oral and written). The only distinction between oral and written contracts is in their mode of proof.". 30 In modern vernacular, a parol contract is not in writing, or is only partially in writing. But "At common law, [it’s] a contract, though it may be in writing, not under seal.". 31 — We conclude that a simple / parol is an ordinary contract, what ordinary Americans think of when they hear the word, "contract".
Since a contract of record is essentially a contract arising out of a judgment, and since no prior judgment existed in Jeffrey’s action against Nate, we’re left concluding that Jeff’s action must be either a specialty or a simple / parol. It’s clearly not a specialty because it’s not under seal, and it’s not even in writing. So we’re led to conclude that the presumed contract between Nate and Jeffrey must be a simple / parol. Simple / parol contracts are classified most prominently according to how they are enforced. Out of the numerous ways to classify contracts – and to classify the variety of simple / parol contracts – this classification of such simple contracts according to how they are enforced is closest to our central concern about consent.
Given our overriding concern for avoiding bloodshed and honoring consent, classifying simple / parol contracts according to how proof of consent is obtained by a court is crucial. So the overriding sub-categories of simple / parol contracts are those expressed and those implied. "Express contracts are those in which the terms of the contract or agreement are openly and fully uttered and avowed at the time of making: as, to pay a stated price for certain specified goods; to deliver an ox, etc." 32 For example, the contract between Joe Blow and Jack Stark was express, even though it was not in writing. Failure to put the contract in writing makes the contract more difficult to enforce in a court. Nevertheless, if it’s not in writing, the contract can be fully articulated orally, making it an express contract.
"An implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct, the circumstances surrounding the transaction making it a reasonable, or even a necessary, assumption that a contract existed between them by tacit understanding." 33 If Sneed Carnahan goes to a produce wholesaler and orders a truck-load of potatoes, pays for it in advance, and neglects to get written evidence of a contract; and the wholesaler delivers to Sneed a truck-full of rocks, a court would probably find evidence that there was a contract. Because evidence of the existence of this contract is circumstantial, the court sees it as an implied contract. — "Implied contracts may be either implied in law or in fact." 34
"A contract implied in fact arises where there was not an express contract, but there is circumstantial evidence showing that the parties did intend to make a contract; for instance, if one orders goods of a tradesman or employs a man to work for him, without stipulating the price or wages, the law raises an implied contract (in fact) to pay the value of the goods or services." 35 The action between Sneed Carnahan and the wholesaler pertains to a contract implied in fact.
"‘The only difference between an express contract and one implied in fact is in the mode of substantiating it. An express agreement [(obviously including a parol contract)] is proved by express words, written or spoken . . . ; an implied agreement is proved by circumstantial evidence showing parties intended to contract’". 36 So the distinction between a contract implied in fact and an express contract pertains purely to the kind of evidence used to establish the existence of the contract. In both express and implied in fact, the source of the obligation is the intention of the party. In other words, in each, the contract is established by consent.
In contrast to express contracts and contracts implied in fact, consent is not the source of the obligation in contracts implied in law. "Implied contracts are sometimes subdivided into those ‘implied in fact’ and those ‘implied in law,’ . . . . [T]he latter are obligations imposed upon a person by the law, not in pursuance of his intention and agreement, either expressed or implied, but even against his will and design, because the circumstances between the parties are such as to render it just that the one should have a right, and the other a corresponding liability, similar to those which would arise from a contract between them." 37 — "A contract implied in law arises where some pecuniary inequality exists in one party relatively to the other which justice requires should be compensated, and upon which the law operates by creating a debt to the amount of the required compensation . . . . The case of the defendant obtaining the plaintiff’s money or goods by fraud, or duress, shows an implied contract to pay the money or the value of the goods." 38 — So the essential distinction between a contract implied in fact and a contract implied in law is that in the former, the parties all intended for there to be a contract, whereas in the latter (implied in law), at least some of the parties had no intention of taking on the obligation. — If one party to a contract implied in law receives a benefit from another party, and does so through "fraud, or duress," or through some other form of bloodshed, then this contract implied in law seems plausible. Thieves should definitely pay back what they steal. 39 But in this contract implied in law between Nate and Jeffrey Lament, Nate did not obtain a benefit from Jeffrey through fraud, duress, or any other form of bloodshed. Yet the judge still claims that there is a contract implied in law between them which obligates Nate to give the frns to Jeffrey. Regardless of whether bloodshed is involved or not, the contract implied in law is a legal fiction, while express contracts and contracts implied in fact are not.
The kind of obligation that’s inherent in a contract implied in law "rests on the principle that whatsoever it is certain a man ought to do that the law will suppose him to have promised to do. And hence it is said that, while the liability of a party to an express contract arises directly from the contract, it is just the reverse in the case of a contract ‘implied in law,’ the contract there being implied or arising from the liability. . . . But obligations of this kind are not properly contracts at all, and should not be so denominated. There can be no true contract without a mutual and concurrent intention of the parties. Such obligations are more properly described as ‘quasi contracts’." 40. — Here we discover several more things about contracts implied in law: (i)They are not really contracts, and are therefore called quasi contracts. (ii)The law presumes to claim to know with certainty what a man ought to do, and claims that because he ought to have done it, the law supposes that he promised to do it. (iii)The obligation exists prior to the assumed existence of a contract implied in law, rather than arising out of the contract. — This last point leads us to make the following observations: (i)In an express contract, the contract – and the consent / agreement that gave rise to the contract – implies the liability / obligation. (ii)In a contract implied in fact, fact implies the existence of the contract, and the contract – and the consent / agreement that gave rise to the contract – implies the liability / obligation. (iii)In a contract implied in law, law mandates the liability / obligation, and the obligation is presumed to imply the existence of the contract, without regard to consent, as though the obligated party were guilty of bloodshed.
(e) Unjust Enrichment – defining "quasi contract":
A quasi contract is a "Legal fiction invented by common law courts to permit recovery by contractual remedy in cases where, in fact, there is no contract, but where circumstances are such that justice warrants a recovery as though there had been a promise. It is not based on intention or consent of the parties, but is founded on considerations of justice and equity, and on doctrine of unjust enrichment. It is not in fact a contract, but an obligation which the law creates in absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it. It is what was formerly known as the contract implied in law; it has no reference to the intentions or expressions of the parties. The obligation is imposed despite, and frequently in frustration of their intentions.". 41 — This definition confirms that a quasi contract and a contract implied in law are synonyms pointing to the same legal concept. It also indicates that "quasi contract" is the more modern of the two expressions: Early in the 20th century, "quasi contract" was "gradually displacing the term ‘contract implied in law,’ which is often used to express the same thing.". 42 The only other information in this definition that is new to us is the fact that a quasi contract can be "based on . . . doctrine of unjust enrichment". Before we look directly at unjust enrichment, we’ll see if we can find out more about quasi contracts.
Another synonym for "contract implied in law" is "constructive contract". A constructive contract is "A species of contracts which arise, not from the intent of the parties, but from the operation of law to avoid an injustice. These are sometimes referred to as quasi contracts or contracts implied in law as contrasted with contracts implied in fact which are real contracts expressing the intent of the parties by conduct rather than by words. . . . An obligation created by law for reasons of justice without regard to expressions of assent by either words or acts.". 43 — These are sometimes called "constructive contracts" because, by construing the law in a certain way, i.e., by a certain kind of construction of the law, one can see a contract where none exists by consent, i.e., in fact.
A quasi contract is generally recognized as deriving from one of four disparate sources: (i)from a court record; (ii)from an official or customary duty; (iii)from a statutory duty; or (iv)from unjust enrichment.
(i)from a court record: If Jack Stark buys a watermelon from Joe Blow; and gets sick from eating it; and later discovers that the watermelon was laced with strychnine; and sues Joe for damages caused by the sickness – based on the thought that the strychnine was in effect a subtle delict perpetrated against anyone who ate the watermelon; and is awarded a judgment of X amount of money from Joe; then that judgment constitutes a court record. If it’s understood that all human beings are under a global mandate to observe the proscription against bloodshed, and the strychnine incident constitutes bloodshed, even if it got into the watermelon by accident or through negligence, then any lawful jural society is a lawful place for Jack to seek a remedy. One major issue that might keep an action like this from going forward, is if Joe has somehow disappeared. For example, if Joe splits to Mexico immediately after selling the watermelon, the local jural society certainly has in personam jurisdiction. But even though it has jurisdiction, it nevertheless lacks capacity to the extent that it cannot find Joe. Since the jural society is formed through a jural compact, and since all human beings are morally obligated to enforce against delicts (and to therefore join a jural society) even though they are not automatically obligated by human law to do so, we conclude that it may be plausible for a court to assume that there is a contract between Jack and Joe. But plausibility and reason are two different things. It’s reasonable for the hermeneutical prologue to maintain a strict distinction between contracts and delicts, and between ecclesiastical societies and jural societies. Following this kind of plausibility merely abandons such strict distinction and the reasoning behind it. So we believe that it’s not correct to treat a case like this as a quasi contract. It should be treated first as a case of bloodshed ex delicto. — Some people might claim that the contract that exists between Jack and Joe is the simple contract that they made when Jack bought the watermelon from Joe. But this contention fails to recognize that, "Where cause of action arises from breech of promise set forth in contract, the action is ‘ex contractu’, but where it arises from a breech of duty growing out of contract, it is ‘ex delicto’." 44 In all contracts, Joe, and everyone else, has a duty to avoid allowing bloodshed to be a by-product of the contract. So implicit in the watermelon transaction is the provision that the watermelon isn’t poisonous. If it is poisonous, that doesn’t just breach the contract as though Joe couldn’t keep a promise that he in good faith intended to keep. The poison introduces the specter of Joe’s never intending for this to be a simple sales contract, but that he intended instead for the watermelon to poison whoever bought it. That means a delict would be built into the contract, thereby making the contract void from inception. So this would be inherently an action ex delicto, not an action arising out of a legal fiction. However, courts in traditional Anglo-American jurisprudence have sometimes understood the judgment of the court, and therefore the court record, to be a contract implied in law, and therefore a quasi contract. This is more a fluke of history than a rationally defensible circumstance.
(ii)from an official or customary duty: Suppose Marshal Dillon gets a writ of execution from the court that he works for, and the writ demands that the Marshal perform an execution sale to collect money to give to the plaintiff in a case. According to this way of thinking, there is a quasi contract that obligates Marshal Dillon to do what the court has demanded. — Like the case of the court record, this kind of quasi contract is not rightly considered a contract implied in law, and it is not rightly considered a fiction of law. That’s because the existence of the social compact (i.e., contract) that Marshal Dillon works for is intuitively obvious, and demands to be treated as a fact. So Marshal Dillon’s contractual obligation derives from a contract implied in fact, not one implied in law. So this is also more a fluke of history than a rationally defensible circumstance.
(iii)from a statutory duty: We’ve been focusing on duties that are imposed by the common law, since that’s where the concept of fiction of law, and the concept of quasi contract, and the concept of unjust enrichment, come from. In the common law, obligations under a quasi contract are usually remedied by rendering a monetary settlement to pay for the damages. 45 But there are also duties / remedies from equity that are not necessarily monetary. There are also duties / remedies from civil law that may be, but are not necessarily, monetary. — "In the civil law, a [quasi contract is a] contractual relation arising out of transactions between the parties which give them mutual rights [(i.e., benefits / privileges)] and obligations, but do not involve a specific and express convention or agreement between them." 46 — In the modern American mega-state, the number and variety of these statutory quasi contracts is practically beyond conception. Payments to the Social Security Administration are probably linked to this type of statutory quasi contract. A few other examples: legal duties relating to marriage licenses (, alimony, child support, etc.), building permits ("You must get one before you build, or we will find a way to make your life miserable."), driver’s licenses ("Obey all the malum prohibitum pertinent to our roads, and forget your right to travel."), and numerous other statutory duties. — According to cases like Kraft Foods Co. of Wisc v. Commodity Credit Corp. and Hill v. Waxberg, constructive / quasi contracts "are created by statute on the premise that they are needed as a matter of reason and justice and are allowed to be enforced ex contractu.". According to cases like Donovan v. Kansas City and In re United Burton Co., constructive / quasi contracts "include obligations founded upon statutory duties.". — In every single instance of a quasi contract that’s induced by statute, if the alleged party to the quasi contract has not consented to being a party thereto, said contract is evidence of bloodshed being perpetrated by the mega-state against the weaker party. So this is also more a fluke of history and statism than a rationally defensible circumstance.
(iv)from unjust enrichment: This last class of quasi contract is based upon "the doctrine that no one shall be allowed to enrich himself unjustly at the expense of another. The latter is the most important and most numerous class [of quasi contracts].". 47 Examples of this class of quasi contract are (i)Jeffrey Lament’s action against Nate to repossess what he claims is his money; (ii)any case in which someone pays the wrong person for some product or service provided by a third party. An example of this latter type of case would arise when Sneed Carnahan orders a truck-load of potatoes from a produce wholesaler; somehow a farmer finds out about Sneed’s need, and delivers the potatoes; and Sneed pays the wholesaler instead of the farmer. In this latter case, the money rightly belongs to the third party, the farmer, and from a moral / ethical perspective, it should be given by the second party, the wholesaler, to the person who earned it, the farmer. But the inevitable question pressed on anyone who recommends strict adherence to the compact theory of government and consent, is this: How do we get the person who gained the benefit without earning it, to surrender the benefit to the person who rightly deserves it? The answer to this question in recent centuries has been to pretend that a contract exists between the presumed parties, and to force the beneficiary to give it up to the rightful owner, even though no such contract exists in fact, and even though consent is neglected, and even though doing so turns government, in fact, into a perpetrator of bloodshed.
There are huge problems inherent in the use of this unjust enrichment breed of quasi contract. According to at least one sage legal authority, any obligation created by a contract implied by law / constructive contract / quasi contract is, "not only unscientific, and therefore theoretically wrong, but is also destructive of clear thinking, and therefore vicious in practice. It needs no argument to establish the proposition that it is not scientific to treat as one and the same thing an obligation that exists in every case because of the assent of the defendant, and an obligation that not only does not depend in any case upon his assent, but in many cases exists notwithstanding his assent.". 48
OK! So one legal "authority" claims that the unjust enrichment quasi contract is unlawful. There are other legal "authorities" who claim that such quasi contract is not only lawful, but that it can be justified. Some such "experts" claim that the quasi contract is like a tort, and can be justified on such grounds, and even choose to call them quasi torts. Using vernacular from the hermeneutical prologue, these "experts" claim that the quasi contract is like bloodshed, more specifically, like a subtle delict. Quasi contracts and torts are alike in that the court imposes its conception of human law on someone, in each case, regardless of whether the latter person consents to the imposition, or not. So Nate, who has not, in fact, committed a tort, a subtle delict, against Jeffrey, is coerced by the court to surrender the bag of frns to Jeffrey, as though Nate had in fact committed a tort. In spite of this similarity, there are big differences. (i)A tort involves an obligation to avoid doing something. But a quasi contract involves an obligation to actively, positively, affirmatively do something, usually fork over money. (ii)Another big difference is that the duty to avoid committing a tort applies to everybody, whereas the obligations in quasi contracts only apply to specific people. "[A] quasi-contractual obligation . . . is always imposed upon a particular person; whereas the duty not to commit a tort rests upon every man in favor of every other man. Nobody may strike anybody, or libel him, or trespass upon his land, or carry off his goods. In short, the duty to refrain from committing a tort and the corresponding right to be free from a tort are both universal in character." 49 This latter distinction goes to the core of this whole discussion, because it is essentially confirmation from a respected legal scholar that bloodshed is global in its in personam jurisdiction, while contracts have in personam jurisdiction only over parties to the contract.
Because of "these reasons quasi-contract and tort cannot be brought within the same field.". 50 Some solution to this moral problem needs to be found that doesn’t turn government into a perpetrator of bloodshed. Perhaps if we look closely at the origins of the concept of unjust enrichment, we’ll be able to find one.
(f) Unjust Enrichment – defining "unjust enrichment":
The doctrine of unjust enrichment is the "General principle that one person should not be permitted unjustly to enrich himself at the expense of another". 51 From a moral perspective, who can argue with it? But just because this doctrine is morally true and reliable, is it lawful to translate it from a moral posture into an assumption that it is globally prescribed human law? Is it valid for people who adhere to biblical standards of morality to use police powers to enforce this moral principle against everyone? Perhaps if we look at the origins of this doctrine’s popularity, we’ll discover how to answer these questions.
This doctrine does not have its origins in Anglo-American common law. It springs indirectly from Roman civil law. Its clearest introduction into Anglo-American jurisprudence appears in the relatively modern case of Moses v. Macferlan (2 Burr. 1005), an action at the British court of King’s Bench in 1760.
The facts in Moses v. Macferlan: A man named Jacob gave IOUs to a man named Moses. But it was more formal than that. In fact, Jacob executed certain promissory notes in favor of Moses. In other words, Jacob signed these notes, thereby promising contractually to pay Moses. Later a man named Macferlan came to Moses asking for financial help. Moses simultaneously (i)indorsed these promissory notes so that Macferlan could collect on them and (ii)had Macferlan sign a special contract stipulating that Macferlan would not attempt to collect the funds at Moses’ expense, but instead at Jacob’s expense. Rather than abide by the promise he made in this special contract, Macferlan filed suit against Moses in the Court of Conscience (a court of equity) for the sake of collecting the funds from Moses, rather than from Jacob. Moses attempted to submit the special contract to the Court of Conscience as evidence. The Court of Conscience refused to accept such evidence and ruled in Macferlan’s favor. Moses paid the full sum of the IOUs to Macferlan via the court’s judgment. Later, Moses filed suit against Macferlan in the Court of King’s Bench. This was not an appeal, but a totally new action. Moses filed the suit "upon the equity of his case arising out of the agreement, that the defendant may refund the money he received", not "upon the agreement itself, that besides refunding the money, [the defendant] may pay the costs and expenses the plaintiff was put to.". 52 — It’s reasonable that if the action brought by Moses were ex delicto, not only the refund, but also payment for all damages done by Macferlan would be sought. The same is true if the action were ex contractu. Furthermore, if the action were ex delicto, Moses might also seek retribution against Macferlan for fraud. But Moses only wanted the money given by him to Macferlan through the judgment of the Court of Conscience, and nothing more. Because of the rigidity of the common law, the court treated the case as neither ex delicto nor as ex contractu.
Macferlan had an obligation arising out of the special contract – more specifically, as a condition implied in law of the contract – not to perpetrate fraud against Moses. The fact that Macferlan perpetrated fraud was grounds for an action ex delicto. If Moses wanted to be lenient towards Macferlan, then he could have expressed that desire to the court. Because of the rigidity of the common law, and because of the nature of the action brought by Moses, the court resorted to a misconceived legal doctrine from the Roman Empire. The court claimed, "If the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case, as it were upon a contract (‘quasi ex contractu,’ as the Roman law expresses it).". 53 — Rather than rely upon the special contract that existed in fact, the court chose to create a fictitious contract, a quasi-contract, to keep Macferlan from enriching himself through fraud.
This case is sometimes cited as the origin of the equitable principle of unjust enrichment. In fact, it is dredging up Roman tyranny disguised as equity. It stands as a paragon of judicial sophistry. It is a perfect example, in microcosm, of how (i)government creates a problem; (ii)people complain; (iii)government mis-analyzes the problem; and (iv)government creates a solution that is worse than the original problem. — It’s good that Moses was able to get his money back. But it’s horrible that this legal precedent was created, and that it continues to haunt our culture even into the 21st century. The principle that no one should unjustly enrich himself at the expense of another, may sound harmless, benevolent, equitable, and just. But by comparing it to another notorious doctrine, we’ll show that it is the jurisprudential foundation upon which the modern American welfare state is constructed. Lord Mansfield’s opinion is not only the "fountain head of our modern law of quasi-contracts". 54 It is also the fountainhead of all our "entitlement programs". This doctrine may be highly beneficial in a religious social compact. But in a secular social compact, it’s poison on a stick. — In fact, any time the distinction between contracts and delicts is abandoned or muddled in law, authoritarian confusion has arrived, and tyranny is not far behind.
(g) Unjust Enrichment – conclusion:
If you ask any dedicated student of communism what maxim stands above all others in Karl Marx’s system, the student will inevitably answer: "From each according to his abilities, to each according to his needs.". Anyone dedicated to biblical standards of morality who doesn’t understand that this adage comes from someone who is a hardened atheist and a fervent materialist, may be prone to assuming that the adage is calling us all to be generous to one-another. Once we believe this, as people who believe in biblical standards of morality, we’re bound to believe that the maxim is a good thing. After all, doesn’t this maxim describe the spirit of community that exists in the 2nd chapter of Acts?: "And all those who had believed were together and had all things in common; and they began selling their property and possessions and were sharing them with all, as anyone might have need." (vv. 44-45; NASB). In case there’s any doubt in your mind, please hear the answer emphatically: No! It absolutely does not describe the spirit of community in Acts 2. — So what’s the difference between the apparent spirit of generosity in the Marxist maxim, and the spirit of generosity in Acts 2?
One violates global jurisdictions, and the other does not. One generates a system of totalitarian bloodshed that is a replica of hell, on earth. The other is a picture of heaven on earth. One operates on voluntarism and consent. The other ignores consent and relegates the spirit of voluntarism to a Siberian gulag. — If people who choose to adhere to the Marxist maxim are also dedicated to recognizing that the only human law that is globally applicable in an imperfect world, is the human law that forbids bloodshed, then the Marxist maxim works, and it is indeed descriptive of a genuine spirit of generosity. But if people adhere to the Marxist maxim without also being mindful of the distinction between the global and local jurisdictions of the Biblical Covenants, then they are inevitably dedicated to designing and supporting a system of government that perpetrates bloodshed against its own people.
These facts about the Marxist maxim apply equally to the doctrine of unjust enrichment. Furthermore, they apply to contracts implied in law and legal fictions in general. If these legal concepts are not judiciously contained within overarching jurisdictions that honor consent, then they inherently lead to abuse of power, and they put a government stamp of approval on government-sponsored bloodshed.
(i)Legal fictions are unnecessary, because operating according to Biblical jurisdictions makes them unnecessary. Legal fictions are necessary only when a certain remedy is needed to procure justice, but the facts in a case don’t readily call forth the remedy, and the judge is left resorting to judicial sophistry to procure the desired remedy. Adherence to reliable jurisdictions eliminates this whole problem. Fiat decisions by judges are almost inevitably a violation of someone’s rights. In Moses v. Macferlan, the judgment abused neither Moses nor Macferlan. But the precedent established by that case led to systemic abuse via the fictitious contract imported from Roman law. — In passing, it’s important to distinguish legal fictions from artificial persons. Legal fictions are a tool used in bad judicial decisions. Artificial persons are legal constructs that facilitate group action. In other words, artificial persons facilitate the proper functioning of contracts and compacts. 55 But to be straightforward, human law should also abandon the doctrine of artificial personhood because it is completely unnecessary. It’s important to recognize artificial personhood as being synonymous with the collective agreement found in any given contract, and as deserving no special privileges beyond that.
(ii)Recognition of reliable jurisdictions makes the contract implied in law unnecessary. — Only the mandate against bloodshed is global in its jurisdiction. All other human law prescribed by the Bible is local. A reasonable reading of the first eleven chapters of Genesis leads to the conclusion that jural compacts and ecclesiastical compacts are basic to human nature, and basic to human societies. The same reasonable reading leads to the conclusion that these two compacts are combined in every society into a social compact. According to the same reading of Genesis, the fact that the Bible prescribes a global proscription against damage caused by delicts and contract violations necessarily means that such proscription is necessarily implied in law in every society. The entire Bible from Genesis 12 through Revelation 22 testifies to the difficulty that human beings and societies have in implementing this proscription implied in law, making it manifest as human law. Such circumstances don’t mean that these compacts are implied in law. It means that human nature being what it is, social compacts are almost inevitable, and wherever a social compact exists – even if it goes by another name, and even if it takes on demented shape – the proscription against delicts and contract violations is a condition implied in law of such social compact. The proscription against delicts and contract violations applies to government officials as much as it does to anyone else. It’s therefore reasonable that social compacts would have conditions implied in law to allow obligations unlawfully imposed by government to be discharged without the performance of the obligee. For example, it must be implied in law that governments interface primarily with denizens (i.e., with people convinced that the government’s existence is unlawful), and with citizens only through the latter’s consent. This might be a condition implied in law of every social compact, for the sake of helping the natural person to defend himself against government-perpetrated bloodshed. — A condition implied in law and a contract implied in law are two radically different things. 56 — Recognition of reliable jurisdictions makes the contract implied in law unnecessary (a)because reliable jurisdictions derive from contracts / compacts that are implied or expressed in fact, not concocted out of thin air; (b)because the contract implied in law is inherently unlawful when it is based on statutes of a secular social compact, where such statutes are overtly cases of government-perpetrated bloodshed; and (c)because coercing conformity to a quasi contract on the basis of unjust enrichment is always forcing people to be generous, the way all good Bolsheviks forced people to be generous, instead of allowing generosity to be voluntary.
(iii)Whenever cases of unjust enrichment arise outside the scope of the lawful jural compact, and outside the scope of the lawful ecclesiastical compact, they arise in the moral sphere, but outside the sphere of lawful human law. Morality may command us to be generous, and we should listen, and be generous. But being forced with bloodshed to be generous is an entirely different issue, regardless of whether church, state, economic entity, or individual initiates the bloodshed. It’s perfectly lawful for a religious social compact to have rules regarding generosity. Assuming that all parties to the religious social compact are party by consent, for the religious social compact to hold the unjust enrichment doctrine, or the Marxist maxim, or any other precept or principle, as a foundation for its ecclesiastical society’s positive law, is perfectly lawful – as long as the consent rule is honored, and bloodshed is avoided. But under a secular social compact that attempts to create a lawful umbrella for numerous religious social compacts, neither the unjust enrichment doctrine nor the Marxist maxim is lawful foundation for secular positive law.
When the Marxist maxim was made the cornerstone of Russian positive law, it led to a national consolidation that was ultimately totalitarian. When the unjust enrichment doctrine was made the cornerstone of the American law of quasi contracts, the advance towards national consolidation was much more subtle, and gradual. But the idea that no one has a right to enrich himself at the expense of another, is similar to the Marxist claim that no one has a right to use his abilities for any purpose other than the gratification of someone else’s needs. These two ideas are so similar that the effects are almost identical. National consolidation in America has been far more gradual, and has taken place over decades, generations, and centuries. But the difference between a Tower of Babel that’s built overnight – after a violent revolution and a civil war – and a Tower of Babel that’s built much more gradually through corrosive notions like secular unjust enrichment, pertains only to time-span. Both Towers are attempts at national consolidation that ignore consent. Any attempt at national consolidation that does not hold the compact theory of government as dear, is as much an abomination as a purported compact theory that does not hold consent as crucial.
The emphasis on consent derives from the statement in Genesis 9:6 that all people are created in the image of God. If Bible-believing people want to honor God, then it’s necessary for us to honor the image of God in other people, even those doomed to eternal perdition. 57 Honoring the right of every human being to consent to how his or her property is used or abused by other people is crucial to honoring the image of God in other people. So it makes perfect sense that in the same verse is a global mandate against bloodshed, and a global remedy for it. On this foundation of clearly understanding Biblical jurisdictions, a compact theory of government develops as a rational outgrowth. But here’s a problem: Every secular social compact that is an outgrowth of this Bible-based compact theory of government must encompass people who do not believe in the Bible. It must do so without perpetrating bloodshed against them. How does this work?
Suppose Mahmoud is Islamic. Suppose He’s been a law-abiding citizen of the united States for most of his life. Suppose that he is a devout Muslim, and in accordance with his study of the Quran, he believes that all non-Muslims are decadent. He believes that Muslims should not abuse non-Muslims. For example, he believes that the perpetration of bloodshed by Muslims against non-Muslims is evil. So he believes that the terrorist attacks on September 11, 2001, were perpetrated by evil people, people whose conception of Islam was inherently perverse. Even so, he’s convinced that non-Muslims are decadent, and contact with them should be minimized, and assistance to them should be curtailed. — Now suppose that Mahmoud was out canoeing on the same lake where Nate found the bag of frns. Suppose that Mahmoud found the frns instead of Nate. Suppose that like Nate, Mahmoud decides to keep the frns instead of trying to find the previous owner. Jeffrey Lament somehow discovers that Mahmoud has the frns. Jeffrey sues Mahmoud in a presumably secular court on unjust enrichment / quasi contract / legal fiction grounds. When the supposedly secular court finds in Jeffrey’s favor, it demands that Mahmoud give the frns to Jeffrey. Mahmoud objects, and files an appeal on 1st Amendment grounds. In other words, Mahmoud believes that the court is violating the free exercise of his religion, and simultaneously violating the establishment clause, by coercing him into behaving like a Christian. He believes the court is trying to force him into acting like a "good Samaritan". In most Judaeo-Christian belief systems, the right thing to do is to return the frns to Jeffrey. But Mahmoud’s breed of Islam says emphatically not to.
Given the present adherence of our supposedly secular courts, to the doctrine of unjust enrichment, Mahmoud’s appeal would not be heard, and he would be forced by the court to relinquish the frns to Jeffrey. But if our courts were genuinely secular, they would not adhere to the doctrine of unjust enrichment, and they would not force people to be generous, and they would not violate Mahmoud’s religion.
This leads us to recognize a seeming paradox: This is not a Christian nation in the sense that Christianity is our national religion. But it is a Christian nation to the extent that Christians recognize that this is rightly a secular nation (not a secular nation) – in the sense that it should adhere strictly to the Bible’s global covenant in all secular settings. We are still in a several-centuries-long transition from being a nation that claims that Christianity is its national religion (as England did), to being a Judaeo-Christian nation that binds itself as a nation to the global covenant, and knows in its bones that this breed of secularism is our destiny, and most glorifies God. Generosity will grow naturally out of our local religious social compacts, rather than from a top-down, nationally consolidated government. All the present secular governments in the united States are lawfully secular social compacts. As such, their overarching duty is to execute justice against damage perpetrated by one set of parties against another set of parties, where such damage can arise either ex contractu (via express contracts and contracts implied in fact) or ex delicto. In other words, their overarching duty is to protect property rights above all other considerations. These secular social compacts cannot operate under the pretense that they are religious social compacts, because, among other things, the 1st Amendment forbids the establishment of religion.
Over the centuries there has been plenty of theological confusion in the Christian camp. This confusion has led to the acceptance of grievances like the theft of Native American property with precious few signs of any Christian jural society lifting a finger to bring justice in such cases of bloodshed. The confusion has led also to rationalizations in the Christian camp to allow the existence of slavery and Jim Crow laws. Every human being victimized by these grievances had a case of unjust enrichment against some set of perpetrators (in addition to criminal actions). Should America destroy itself in order to give reparations to Blacks? Should vast tracts of land be turned over to the descendants of the original Natives? — The human race exists in a state of depravity. It’s only by the grace of God that any of us even exist. We are all sinners. We should stop bloodshed at every possible opportunity. But it’s absolutely essential to count the cost in advance. If the united States accepts its calling to be a confederate republic of secular social compacts – each of which acts as an umbrella compact for numerous compacts that are both religious and secular – then it’s an inevitable calling to every religious social compact to be extra-generous and gracious to Blacks, Native Americans, and others who have suffered by way of bad American laws. Even so, it’s colossally foolish for secular social compacts to continue exercising the doctrine of unjust enrichment, and it would be colossally foolish for secular social compacts to attempt to make blanket reparations. It’s wise for secular social compacts to stay focused on their primary obligation, to execute justice against bloodshed in all possible cases, and to honor all lawful treaty obligations.
No doubt there are plenty of people who are convinced that elimination of all mandatory generosity from secular social compacts would result in a heartless, mean-spirited economic system. It would certainly be a free market. But it would not be a capitalist market to the extent that capitalism treats fractional-reserve banking as fine-and-dandy. The doctrine of unjust enrichment – like the Marxist maxim – stands at odds with inevitable competition in a free market. That’s because competition leads to winners and losers. Any loser could sue a winner on the grounds of unjust enrichment, claiming that the winner had unjustly enriched himself at the expense of the loser. This line of reasoning is the foundation for statutes like the Sherman Anti-Trust Act. When we eliminate the doctrine of unjust enrichment from the jurisprudence of secular social compacts, we should simultaneously eliminate laws like the Sherman Anti-Trust Act. Such laws are far more vicious than lawful competition ever was.
Everyone who is currently receiving a benefit from government should know that they are currently subject to the unjust enrichment doctrine, by way of the statutory-duty breed of quasi contract. Regardless of whether your benefit is driving on government roads, sending kids to government schools, food stamps, Medicaid/Medicare, Social Security entitlements, etc., etc., etc., ad nauseam, you are not allowed by this doctrine to enrich yourself through this benefit at someone else’s expense. According to this doctrine, you are benefiting and government is losing. So you are vulnerable to a suit brought by the government against you any time the agents of the secular government feel like making one. Because unjust enrichment is an equitable doctrine, the government can use equitable remedies (read fiat) to control its dispensation of benefits. Because the administrative state has become gargantuan, the government is even more likely to use administrative remedies (read fiat). Because law and equity have been "merged", the powers and remedies available to the government are almost beyond containment.