Notice and Demand

(Elements)

 

There is no penalty for making reasonable mistakes in good faith. However, if one intentionally does harm, then he may be sued. Nevertheless, before he can be sued he must be given a fair opportunity to correct his error. The notice gives one that fair opportunity. By it, he may have sufficient notice to assert proper diligence and inquire further so as to discover that which an inquiry pursued in good faith would disclose.

There is a wide latitude in the style you use to write the notice. You can pretend you are writing to your sweet old grandmother, or to the devil himself (IRS). From the court’s point of view, the style does not manner if the legal points are made. Choice of style is a strategy decision— what effect do you want to have on the offender? Before sending the notice remember to apply a Mark Twain’s 7 rules for good writing: “revise, revise, revise, revise, revise, revise, revise.” It takes 7 major revisions to do a notice correctly.

In your notice to your adversary, make the following points:

1. what he is doing or not doing.
2. Your injuries (e.g. loss of substantive rights). (NOTICE! “Injury” and “damages” are NOT synonymous words. Injury is the harm done. Damages are the compensation for the injury.)
3. His duty to not cause you injury. The moral, public, and private laws that require him to not cause you injury (e.g. Ten Commandments; Bill of Rights, 18 USC §§ 241, 242; 42 USC §§ 1983, 1985, 1986; and your own rules).
4. He is breaching that duty.
5. State the damages (what he owes you) for the injury. Site the moral, public and private measurements of the damages (e.g. Biblical; 18 USC §§ 241, 242; 42 USC §§ 1983, 1985, 1986; and your own estimate.)
6. Demand that he, in good faith, do his duty, pay you the damages, and to do so within a reasonable number of days (usually 60 days for government, 30 days for everyone else).
7. If he does not do as demanded within the allotted time, then by tacit procuration (assumed power of attorney) you will determine for him the facts, his duties, and the damages he owes you.
8. If he does not perform as demanded, you will take lawful action (in personam and in rem) to defend against them, and persons acting in concert with him, who cause or attempt to cause such injuries; to secure your substantive rights; and to redeem the damages owed to you.

The constructive notice should be served upon the adversary and the same manner that one would serve a summons and a lawsuit. A proof of service should be executed and held for use as necessary in a future lawsuit.

“Knowledge of facts which would naturally lead an honest and prudent person to make inquiry constitutes ‘notice’ of everything which such inquiry pursued in good faith would disclose.”  Twitchell v. Nelson, 131 Minn. 375, 155 N.W. 621, 624; German-American Nat. Bank of Lincoln v. Martin, 277 Ill. 629, 115 N.E. 721, 729. Black’s Law dictionary, 4^th ED., p. 1210.

“In another sense, ‘notice’ means information, an advice, or written warning, in more or less formal shape, intended to apprise a person of some proceeding in which his interests are involved, or informing him of some fact which it is his right to know and the duty of the notifying party to communicate”. Black’s Law dictionary, 4^th ED., p. 1210.

"Actual notice has been defined as notice expressly and actually given, and brought home to the party directly. Jordan v. Pollock, 14 Ga. 145; McCray v. Clar, 82 Pa. 457; Morey v.  Milliken, 86 Me. 464, 30 A_ 102. The term 'actual notice,' however, is generally given a wider meaning as embracing two classes, express and implied; the former includes all knowledge of a degree above that which depends upon collateral inference, or which imposes upon the party the further duty of inquiry; the latter imputes knowledge to the party because he is shown to be conscious of having the means of knowledge. In this sense actual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry. Picklesirner v. Smith, 164 Ga. 600, 139 S.E. 72, 74; White v. Fisher, 77 Ind. 65, 40 Am.Rep. 287." Black's Law Dictionary, 4th Ed., p. 1210.

"Constructive notice is information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it. Baltimore v. Whittington, 78 Md. 231, 27 A. 984; Acer v. Westcott, 46 N.Y. 384, 7 Am. Rep. 355." Black's Law Dictionary, 4th Ed., p. 1210.

“Constructive notice' is a presumption of law, making it impossible for one to deny the matter concerning which notice is given, while 'implied notice' is a presumption of fact, relating to what one can learn by reasonable inquiry, and arises from actual notice of circumstances, and not from constructive notice. Charles v. Roxana Petroleum Corporation, C.C.A.OkI. 282 F. 983, 988. Or, as otherwise defined, implied notice may be said to exist where the fact in question lies open to the knowledge of the party, so that the exercise of reasonable observation and watchfulness would not fail to apprise him of it, although no one has told him of it in so many words. See City of Philadelphia v. Smith, Pa., 16 A. 493." Black's Law Dictionary, 4th Ed., p. 1211.

 

Presented by Melvin Stamper, JD.

Professor of Law