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The Individualist Manifesto jury system

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bas...@gmail.com

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Jul 30, 2024, 10:38:45 AM7/30/24
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The Individualist Manifesto jury system 

Trevor Watkins 30/7/24

The Individualist Manifesto suggests a jury system for resolving disputes and grey areas within a community. This is probably the most contentious of the 4 components in the manifesto, so I am writing this article to help explain and clarify this issue.


Job 5:7 says that “Man is born to trouble as surely as the sparks fly upward”. Things fall apart. Conflicts always arise. In the past conflicts were resolved by the king, or through warfare. Nowadays they are resolved by courts and judges appointed by politicians in government. This critical function has been moved beyond the control of the individuals involved in the dispute. When other avenues such as compensation and apology have failed, I suggest that conflicts between individuals should be judged by other individuals using the tried and trusted jury system.

How will it work?
  1. One individual or group declares to another individual or group that a dispute exists.

  2. Being good individualists, the disputants mutually agree to settle the dispute using the jury system proposed in the Individualist Manifesto, to minimise conflict and costs.

  3. Jury duty is voluntary. Commonly members of the jury will be selected by the disputants.

  4. The size and composition of the jury must be consented to by both parties to the dispute.  If agreement on a jury cannot be reached in a reasonable time (7 days, for example), both sides select six jurors, and a foreman with a casting vote is chosen by random lottery of the jury members.

  5. Because it is a matter of chance as to which side obtains the casting vote on the jury, it will be important for both sides to select jurors committed to acting on the merits of the case, rather than jurors blindly supporting the side which appointed them.

  6. The members of the jury alone determine the rules for the hearing. 

    1. They may be guided by well-established rules of legal procedure and evidence, but they are not bound by it. 

    2. They may appoint a judge or judges to guide them.

    3. They may invite or allow lawyers to represent the parties.

    4. They may allow witnesses, cross-examine them, conduct investigations, seek the opinion of experts, or do whatever is required to reach a decision.

    5. Jury decisions are made by a simple majority vote.

  7. They will be funded equally by the parties to the dispute during the hearing, but may finally decide on any allocation of costs they see fit.

  8. Any jury decision may be appealed to another jury until one side or the other has 3 identical decisions in its favour. Thereafter the jury decision becomes binding upon both parties to the dispute, and is added to the set of legal precedents for that  community which defines their common law.

  9.  I believe that a class of professional, impartial jurors will arise whose primary asset will be their reputation for fair decisions. This class of jurors will provide the pool from which most parties to a dispute will make their jury selection.


Benefits
  1. Juries will be local and decentralised. Bad decisions will have immediate consequences visible to the community

  2. Because they are local, a jury will reflect the standards and customs of the community in which it is based.

  3. Conflict and costs will be reduced.

  4. Access to justice will not be denied because of wealth or position.

  5. Endless expensive delays will be reduced 

  6. By participating directly in the justice system, citizens exercise their freedoms and duties in a tangible manner.

Challenges
  1.  There's the risk of local biases influencing decisions, which could undermine the libertarian ideal of impartial and fair justice. Each side selects its own jurors, which should minimise this.

  2. The potential for injustice always exists even in the best systems, as the New York judiciary currently illustrates.

  3.  The Individualst Manifesto and the HarmConsentRule constitute the legal framework within which the jury operates. This may not be acceptable to all.

Stephen van Jaarsveldt

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Jul 30, 2024, 3:27:35 PM7/30/24
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Since I was a leading opponent of the jury idea in previous discussions, let me jump right in with an initial response.

In a free market, ideas with merit and value should have no problem making a sustainable living alongside other good ideas. My suggestion therefore is to pitch this system as a business idea, especially since one of its benefits is supposed to be a reduction of costs. Let us shark tank the idea.

Speaking of costs, the assumption appears to be (not just here, but generally) that disputes are handled through the legal system with its courts, judges, lawyers, laws, acts, regulatory bodies, procedural formulations, etc... and that system is definitely not cheap. An alternative should be welcome.

However, I would suggest that people have for this very reason already found and resorted to alternatives. Enormous numbers of disputes (for sure the vast majority) never reach the official legal system... and those that do very rarely require arbitration i.e. is not declared between two parties.

Disagreements between colleagues are often settled by their boss. Disputes in a household by a parent or by the spouses splitting up or by someone sleeping on a couch. Disputes between humans and animals are usually resolved by means of a duel, often a very one-sided duel, depending on the size & type of animal.

Even when things are so serious that they are not easily resolved with one of the very common extra-judicial solutions, it is still resolved outside the legal system... for example, the most common killer in most of the world is a spouse... in other words, the dispute was handled by murder, might or duel.

It seems to be on the decline now, but when I was growing up not too long ago, the most common means of dispute resolution was to take it outside, which often included the waving of fists, the wielding of knives and the occasional discharge of a firearm or the breaking of a beer bottle.

A dictionary should not say how words should be used, but rather how words are actually used. The legal system should not reflect how men should act, but how they really act. I believe the people have spoken and they seem to have chosen to deal with it themselves, in the moment.

Maybe if there was a sufficiently cheap alternative, people would use that, but I suspect that a night on the couch is still cheaper than Trevor's Jury Services PTY LTD.

S.


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vlie...@btinternet.com

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Jul 30, 2024, 4:47:52 PM7/30/24
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From, Martin Vlietstra

 

First of all, who am I. I worked with Trevor in the 1970's and in 1978 relocated to the United Kingdom. Trevor and I have kept in touch since then.

 

The United Kingdom has an arbitration system in place. Arbiters are appointed jointly by parties in dispute and are usually experts in the field. For example, if the dispute involves an IT system, the President of the British Computer Society (BCS) is empowered to appoint arbiters who are accredited by the BCS and who will establish the facts - "Did the software supplied comply with what was contracted?" A BCS-appointed arbiter will seldom award damages, though once the facts have been clarified, any damages will quickly be determined by reference to Common Law.

 

In my view, Stephen rightly identifies that any dispute settlement system should work first and foremost in the free market situation. In any market, there are a number of parties - the buyer and the seller (who do not necessarily know each other) and most importantly of all the regulator (who identifies what can be bought and sold in the market and how the product is packaged and how it is delivered and how it is paid for). Having a regulator in a free market improves transparency - if I am negotiating with you, does my price include government taxes or not? When is payment required? How is the product delivered? For the record, in the 1970's I sold peaches on the Johannesburg fruit and vegetable market (via an agent) and more recently I have worked on IT systems in both the London and Frankfurt financial industries.

Stephen van Jaarsveldt

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Jul 30, 2024, 6:24:27 PM7/30/24
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The problem with economics is that it is so very hard for most people to grasp. On the surface it seems straight-forward, but right below the surface is a veritable quagmire of complexity.

Regulators do indeed increase certainty and transparency, but at what cost ? We don't know, because we do not pay it directly or get to choose products without them for comparison.

For this reason, regulators can be considered a negative externality. Yes, negative, because we know socialism fails and thus the price of regulation must be higher than the benefits.

Some externalities are easier to quantify - we can tell, for example, how much the government has paid out in grants... and recipients certainly see grants as a benefit... but at what cost ?

Someone has to pay for the grants, the regulators and jurists. When provided by the government it seems to be free, but it is not and the consistent failure of socialist states suggest it's big.

The tricky bit in economics is to look past what can be seen and to recognize that which cannot readily be seen*... like the schools and hospitals and houses that could have been built.

* If I may borrow from the late Mr. Bastiat.

Trevor seems to be suggesting one way in which the market may provide justice / arbitration... and maybe the market would do it that way, but maybe it would not. Only trying will tell.

S.


Stephen vJ

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Jul 30, 2024, 7:31:53 PM7/30/24
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I suspect that the market may in fact come up with something totally unexpected, like accepting the cost to date as sunk and just walk away or a really nasty review on Yelp causing the other party to beg for forgiveness or privately contracted hitmen or a no-questions asked returns policy. Trying to determine pre-hoc what the market will come up with is like predicting stock prices - near impossible.

Stephen.

On Jul 30, 2024, at 16:24, Stephen van Jaarsveldt <sjaar...@gmail.com> wrote:



Gabri Rigotti

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Jul 31, 2024, 8:36:30 AM7/31/24
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Hi Martin

Regarding the "need" of a regulator in the free market, the moment a market is subjected to any form of state applied regulation it is no longer free.


In a genuine free market, if there is a demand for parties that will ascertain " ... what can be bought and sold in the market and how the product is packaged and how it is delivered and how it is paid for” then service providers in this field will naturally arise to meet the demand without any need for a state imposed regulator.


Whether these parties are called “regulators” or whatever, their name will arise and shape itself in the free market to fit the demand … without any form of government intervention.


Paradoxically many pro “free market” economists stop short of being pro free market and fall back on the government to regulate the market.


Just a little bit here and a little bit there of intervention … but the moment that happens there will be immediately someone who benefits thanks to the intervention and others who do not.


The initial genuine free market system then starts degrading into a regulated market system that will increasingly favour some over many others.


Relating back to the jury discourse, arbitration is such a service that can and does arise naturally, contracting parties can agree on how disputes will be resolved.


However, any mutually trusted party that is willing to perform arbitration would be able to do so in a genuine free market. There may be formal professionals selling their arbitration services or informal mutually trusted ones ... the free market will provide.





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" It is not the water in the fields that brings true development, rather, it is water in the eyes, or compassion for fellow beings, that brings about real development. "

—Anna Hazare

John Pretorius

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Jul 31, 2024, 8:52:42 AM7/31/24
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I agree. "Free market" must mean just that - free market. We must accept that it's not perfect, but any attempt to try to improve it with exceptions is going to collapse into a soggy mess. Same with free speech.

John Pretorius
13 Olive Lane, Morningside, Sandton 2196, South Africa

From: indivi...@googlegroups.com <indivi...@googlegroups.com> on behalf of Gabri Rigotti <rigo...@gmail.com>
Sent: Wednesday, 31 July 2024 14:36
To: indivi...@googlegroups.com <indivi...@googlegroups.com>

Stephen vJ

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Jul 31, 2024, 9:11:43 AM7/31/24
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Luckily you can declare a dispute with the regulator or the government who created them and any sensible jury will surely decide to abolish it.

Stephen.

On Jul 31, 2024, at 06:52, John Pretorius <jrp...@gmail.com> wrote:



Gabri Rigotti

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Jul 31, 2024, 10:02:54 AM7/31/24
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Gabri Rigotti

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Jul 31, 2024, 10:04:42 AM7/31/24
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John's:

I agree. "Free market" must mean just that - free market. We must accept that it's not perfect, but any attempt to try to improve it with exceptions is going to collapse into a soggy mess. Same with free speech.

... 😊👍👌 ... 

vlie...@btinternet.com

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Jul 31, 2024, 10:30:20 AM7/31/24
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I disagree.  

 

State regulation can often simplify things without compromising the fundamental tenant of a free market – namely that price is determined by supply and demand only.  Consider for example a government regulation that all weights and measures used in the market shall comply with certain regulations.  If these regulations are sufficiently wide, then they will aid transparency – it the buyer and seller agree a price per unit weight, then provided that the scales meet the government regulations, there is no need for the parties to verify the scales as part of the deal – the government has already done that. If I am buying eggs and the government has decreed what is meant by “large”, “medium” or “small” eggs, again both buyer and seller have an agreed yardstick against which they can base their agreement.

 

Again, the regulator might specify how bargains are to be paid for.  If it is cash, do I hand my cash over to the seller (which means that he has the added problem of carrying a large amount of cash around with him), or does he give me a chit, I settle at the cash desk and he then hands the product over to me.

 

Finally, the regulator should provide a means of settling disputes.  This is one of the reasons why he might specify what units of weight and measure should be used – he can verify the scales which were used were just scales.  In passing, may I mention the state of affairs in France in 1789 – each nobleman, each businessman, each trader had the right to nominate the units of measure that he was using – the king’s measures only applied to debts (taxes) owed to the king. There were over half a million different weights and measures.  One of the consequences was that when the Revolution broke out on 14 July 1789, one of the areas of concern that was addressed was that of weights and measures – the result was the metric system. If I buy a kilogram of apples today, I will get the same weight as if I bought a kilogram in 1799 (when the first prototype kilogram was put to use).

Gabri Rigotti

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Jul 31, 2024, 11:46:15 AM7/31/24
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Hi Martin

Standardisation is a very useful phenomenon for trading therefore because it is useful it will naturally manifest in a genuine free market. 

The demand will just move to the more attractive supply naturally.

Your observations on France are indeed real world meaningful in the sense that France 1789 was not and still is not a free market society.

The historical system of kings and queens and dukes and counts and lords and barons have no place in a free market ... whilst there may have been ephemeral instances of free markets in those times, the markets would have been massively skewed by all sorts of interventions, especially as a result of wars when lands were conquered (stolen) and the conquered people subjected (enslaved) to the authority of the conquerors ... 







Stephen van Jaarsveldt

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Jul 31, 2024, 12:29:38 PM7/31/24
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I disagree with your disagreement.

Despite us all laughing at the USA for being the only remaining place on earth to still use imperial measurements, they have a) gotten to the top of the pile economically and b) are functioning just fine with a mix of measurements. Over time many of them are coming around to easier standards, simply because it is worth it, rather than through compulsion... and that is how it should happen - when you can, not when you must for the sake of appeasing some man-made god.

Secondly, there are many areas where standardization is much more important than the weight of eggs and where the market supplies some very precise guidelines without regulatory power to enforce it - see for example PMP and other certifications provided by PMI, the ITIL standard, ISO standards and the GSM standard. It is definitely possible for us to standardize without the government getting involved - the world is filled with good examples.

Thirdly, there have been some horrific unintended consequences from government standardization, for example where a farmer's eggs were larger than the government measurement for "medium", but not quite big enough for "large" and so it ended up being dumped or sold at great risk on the black market or exported elsewhere or lied about or the farmer reduced his chicken's feeding, thus killing millions of chickens in an attempt to conform to the legal standard, etc.

Regulation is bad. Period.

Trevor Watkins

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Aug 1, 2024, 8:23:27 AM8/1/24
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Hi Martin,
Great to hear from you again. I trust you are well.
Comments in red below
Trevor Watkins
bas...@gmail.com - 083 44 11 721 - www.individualist.one



On Tue, 30 Jul 2024 at 22:47, vlietstra via Individualist Movement <indivi...@googlegroups.com> wrote:

From, Martin Vlietstra

 

First of all, who am I. I worked with Trevor in the 1970's and in 1978 relocated to the United Kingdom. Trevor and I have kept in touch since then.

 

The United Kingdom has an arbitration system in place. Arbiters are appointed jointly by parties in dispute and are usually experts in the field. For example, if the dispute involves an IT system, the President of the British Computer Society (BCS) is empowered to appoint arbiters who are accredited by the BCS and who will establish the facts - "Did the software supplied comply with what was contracted?" A BCS-appointed arbiter will seldom award damages, though once the facts have been clarified, any damages will quickly be determined by reference to Common Law.

 

In my view, Stephen rightly identifies that any dispute settlement system should work first and foremost in the free market situation. In any market, there are a number of parties - the buyer and the seller (who do not necessarily know each other) and most importantly of all the regulator (who identifies what can be bought and sold in the market and how the product is packaged and how it is delivered and how it is paid for). Having a regulator in a free market improves transparency - if I am negotiating with you, does my price include government taxes or not? When is payment required? How is the product delivered?

Why would a contract between sovereign individuals need a regulator? All the agreed terms would be in the contract, accessible to both parties. The contract might be setup on the blockchain as a "smart" contract, or it could be written on a table napkin. Once consented to by both parties, normally by signing, why should a generally incompetent and disinterested party like a regulator need to be involved?

Even a contract might be superfluous. I will supply you as long as you pay me. Miss one payment and I am gone.

Trevor Watkins

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Aug 1, 2024, 8:36:39 AM8/1/24
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Trevor seems to be suggesting one way in which the market may provide justice / arbitration... and maybe the market would do it that way, but maybe it would not. Only trying will tell.
 
During Covid I organised a zoom jury trial amongst libertarians based  on the girl in the Iraqi market scenario described in the IM manifesto notes. It was quite well supported, with about 10 jurors divided equally. I acted as the facilitator (not judge).  The decision reached was sensible, and accepted by both sides. 


Trevor Watkins
bas...@gmail.com - 083 44 11 721 - www.individualist.one

vlie...@btinternet.com

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Aug 1, 2024, 9:47:47 AM8/1/24
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Hi Trevor, Thank you for your greetings.

 

You might recall that when we were working together in the 1970's, I was doing a part-time BCom at UNISA which I never completed. One of the modules that I did pass was Commercial Law I. In that course I learnt that one of the important aspects of any contract is that there should be a built-in mechanism to resolve disputes. I also learned that certain types of contract were always void (ie the courts would never enforce them - such contracts generally involved committing illegal activities), some contracts were voidable (especially those contracted by a minor which could be unilaterally revoked) while others would be enforced by the law should one of the parties request the courts to do so. 

 

Contract Law also provides default solutions for many situations that might not be built into a contract. As an example, if A accepts an offer from B by post and after he posts the acceptance, but before B receives the acceptance, A drops down dead, can B demand that A's heirs honour the contract or not (and vice-versa)? In many decent contracts, such a situation is dealt with by the simple clause "This contract is to be interpreted under English Law" and legal precedents will be consulted.

 

Under English Law, many "default" situations can be over-ridden by the contract, but the courts will often take into consideration the negotiating power of the parties concerned when asked to over-ride a clause. English Law will usually uphold any decision reached by a reasonable arbitration system - a classic example being the concept of Sharia mortgages. As you might be aware, Moslems are not permitted to charge interest on loans.  If a Sharia-compliant bank makes a loan so that a borrower can buy a house, the bank becomes a joint owner of the house, and the borrower buys rents the part of the house that the bank owns and slowly buys fractions of the house from the bank. If the borrower dies and the house is sold, the bank then takes a portion of the proceeds of the sale equal to the fraction that they still own. Not only would such a process be upheld by the English courts, but the British tax office has modified its tax laws so that transfer tax on such loans is only paid once in line with non-Sharia loans.

 

I trust that this will help put into perspective what you are saying about jury systems for resolving disputes. In England, the courts would probably uphold a decision made by such a jury provided that it can be shown that if one party was much stronger than the other, that the process was equitable.

Stephen vJ

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Aug 1, 2024, 10:10:48 AM8/1/24
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I admit freely that my position on this may be more indicative of my personality than any objective criteria. In my almost half a century on this planet, I have never once felt the need or desire to make use of a lawyer or the official legal system... and not because I have somehow miraculously avoided disputes or the law, but because I personally prefer other means of dispute resolution. I know people on the other side of that preference spectrum who have a lawyer permanently on retainer and spend time in court every few weeks. If you're providing a service as described below, please don't consider my lack of support a reflection of your service - it just does not happen to fall in my taste. Others may love it.

Stephen.

On Aug 1, 2024, at 06:36, Trevor Watkins <bas...@gmail.com> wrote:



vlie...@btinternet.com

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Aug 1, 2024, 10:41:47 AM8/1/24
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Hi Stephen,

 

I have had two instances where I have had to go to law – both connected with people owning me money and refusing to pay. In the first (in 1994), the client made me a scapegoat for a project that had gone wrong and the agency concerned refused to pay me fees in lieu of notice.  They were obviously giving me the run-around for about three months until I instituted a claim through the (English) small claims court.  When the summons landed on their desk, they paid me within 24 hours. The second instance (in 2009) a client who was in financial difficulties owed me a sum of money in excess of the small claims court limit. I suspected that the tax office would be declaring him bankrupt (in which case they take precedence over all other claimants), so I engaged a solicitor (lawyer) to ensure that I got my money before the tax office moved in.

 

I have had a third instance when I had an interaction with the law – I was on the jury for a case of attempted rape. In the event I ended up as foreman.

 

I have of course engaged a solicitor when buying and selling a house (the norm in the UK), to assist in drawing up my will and when dealing with my late in-laws affairs (I was the executor in both their estates and their solicitor held their wills).

 

Martin

Stephen van Jaarsveldt

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Aug 1, 2024, 10:58:32 AM8/1/24
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That is very interesting - I definitely learned something new here. Thanks a lot for sharing that Martin !

I wonder, does anyone here know if there is a Jewish equivalent based on the biblical / old-testament forgiveness of debt every 7 / 50 years ?

S.


Vlietstra

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Aug 1, 2024, 11:30:20 AM8/1/24
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I was not aware of anything like that when I was paying off my house.


However, under English Law, a debt is automatically cancelled if the lender does nothing about it for 7 years. A number of years ago, a neighbour wanted to buy a small piece of land from me. I decided that the hassle of registering the land transfer was too much, so I entered into an agreement whereby he rented the land from me for 12 years at a rate of £1 per annum (often known as a "peppercorn rent). In this way, as long as I collected the £1 annually and gave him a receipt, there was never any dispute as to the ownership of the land.


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Stephen van Jaarsveldt

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Aug 1, 2024, 1:06:38 PM8/1/24
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That seems about normal and I forgot about buying & selling property - I've used lawyers 3 or 4 times for that - but in my view that is a form of racketeering, a scheme between the government and the lawyers. If it was up to me, the contract would simply be between myself and the buyer / seller, maybe with the estate agent, but I see no need to have lawyers involved in that process. I tried to avoid interacting with them as much as possible even in that process.

I can tell you the feeling is mutual... with our house before last the lawyers made a 30 minute appointment for us to sign the contracts.... they put about 2 reems in front of me and expected me to just sign based on their specialist advice, but I insisted on reading through every word and asked for clarification in about 4 or 5 places. After two hours their patience got quite thin, so I asked them to explain what they are being paid for if not exactly this, which seemed to baffle them - they clearly expected mountains of money for nothing and were shocked and horrified by me wanting to read what I was signing. I suspect they will avoid working with me about as much as I avoid working with them in future.

Two houses before that the contract was a full 3 pages long and there were absolutely no issues - I think if it was a free market, more people would be doing that, for efficiency's sake. In my experience, more words do not make for a better contract... on the contrary, longer contracts typically result in worse outcomes for all involved... and often the templates you get from CNA is just as good or better than bespoke contracts hand-crafted by ye olde lawyers guild.

There was one occasion where someone supposedly made a case against me (they stole from me so I fired them, then they supposedly sued me for unfair dismissal) and I was apparently summoned to appear in court, but as far as I'm concerned that was just a rumour seeing as I never received the summons and if it made it to court I hope the theft reported to police put a swift end to proceedings. My not getting summoned may be due to my flat refusal to sign for any registered letters, seeing as the post office wouldn't let me look at the item before signing for it. If I can't check that all the pages are there before signing for it, then I'm not accepting it - send it back and try some other way of reaching me.

I guess this is an example of how society and the choices of others impact on us, despite our best intentions and regardless of our consent. I have gone out of my way to avoid lawyers and courts, yet I have been grazed at least 3 times.

S.

vlie...@btinternet.com

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Aug 1, 2024, 1:53:34 PM8/1/24
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If the lawyers are doing their job properly, then there should not be any problems.  I have never bought or sold property in South Africa, but having spoken to my brother , I know that there is a big difference between property transfers in the UK compared to RSA.  In the UK, the idea is that if I am buying a new property and selling an old property, both transactions take place at the same time.

 

At the moment that the agreement is “completed” (the official jargon in the UK), money that I owe on the loan for my old house will be repaid (using money from the buyer) and any additional or alternative  loan that I might need for my new house will be made available to my solicitor. Before this happens,  the buyer's solicitor checks the official records and make sure that nobody has a loan secured against the property that his client is buying, or if they do, that the loan will be discharged when the property transfer takes place. He also checks on behalf of his client that the buyer has available funds to pay for the property. I never actually see any of the money that is changing hands until a few days after "the dust has settled", when any outstanding debts are settled up. It is not uncommon for there to be six or even more people linked up in a chain, all discharging their obligations simultaneously and part of the solicitor’s task is to ensure that everybody “exchanges contracts” (ie becomes committed to their part of the exchange) at the same time and that they are able to fulfil their part of the bargain.  “Rents of occupation” which I believe are used in South Africa are not used in the UK.

 

There are so many small points where I could be tripped up such as the seller has a second mortgage that I did not know about or the buyer not having enough money to buy my old property which is why I use a solicitor (who has a professional indemnity insurance).

Gabri Rigotti

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Aug 1, 2024, 2:03:38 PM8/1/24
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This is delightfully wonderful Stephen 😅👍👌 your:

" ... they put about 2 reems in front of me and expected me to just sign based on their specialist advice, but I insisted on reading through every word and asked for clarification in about 4 or 5 places. After two hours their patience got quite thin, so I asked them to explain what they are being paid for if not exactly this, which seemed to baffle them - they clearly expected mountains of money for nothing and were shocked and horrified by me wanting to read what I was signing."

Stephen van Jaarsveldt

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Aug 1, 2024, 2:23:29 PM8/1/24
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Having purchased a property in Canada within range of my remaining medium-term memory, I can say the process here (and most of North America) is far simpler and also a lot harder. That might sound like a contradiction, so let me elaborate a little bit and then we can go back to how that relates to the principles in the original topic...

When you own a property in Alberta (ironically provinces are called provinces, but have much of the legal autonomy that US states have... those being proper states, as in countries, belonging to or united under the federation... much like France and Germany are to the European Union... so each province has their own rules) it need not be registered in any central deeds office or authority.

The property might be within the boundaries of a town and then the town is incorporated, like a business... so you are an entity owning a property, within the fence of another legal entity. That is perfectly fine for the town to surround your property, just like Lesotho is surrounded by South Africa - they are independent.

What often happens though is that the town is incorporated first and are the initial owners of the plot of land... so when they sell it, they include in the initial sale a lien on the property, saying something like they are selling all rights to that piece of land, except their right to an annual tax to cover fire fighting, road repair, snow removal, street light and rubbish removal from the edge of the property. That is a lien or condition attached to the property in the initial sale.

So when you sell the property, it comes with a deed and all the liens or conditions agreed to by previous owners, to be carried over to the new owner. The contract itself is just a sale between the seller and buyer and could be a single page, but then it will have several attachments relating to the town, the provincial government, the local HOA, etc. where those exist.

The mortgage on the property comes with a lien or condition too, which says if you don't pay the bank, then they have a right to the house & land, usually after all the other pre-existing liens have been satisfied. The difference is that when you sell, the bank assumes you'll take the money from the buyer, pay off your mortgage, they'll release the lien on your house and then the buyer can make his own arrangements with his bank.

None of this is dependent on the sale of a previous property... you can put that down as a condition in the contract and some people do, but for the most part you can shake hands now, own the house tonight and move in tomorrow, because the only paperwork required is the sale contract and releasing the bank's lien related to the mortgage... which takes about 2 minutes.

In South Africa you are lucky if you see your money within 6 months of agreeing with a buyer. It's a very long, complicated and expensive process.

Now, back to the point... the fact that this can be done in such very different ways in different countries or provinces suggests that it could be done many different ways within a country. If we let go of all these silly rules, people can choose how they want to do it. Maybe people would want a centralized registry and some company would provide that... or maybe they want it simple.

I see no reason why it should work any particular way or why the government should be the one telling us which way that should be. Why can't we choose which way we want it to work for ourselves ? Why can't we have competing ways and choose one ? A huge amount of paper, time, effort and skill is being wasted by an artificially bloated system, which adds no value.

It has always boggled my mind why you are required to have lawyers and deeds offices and agents involved in buying a firmly planted house for R 750 000, but you can buy a R 7 500 000 Lamborghini which can be easily hidden, moved or taken across the border with hardly any paperwork. Talk about lack of consistent standards !

S.



vlie...@btinternet.com

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Aug 1, 2024, 4:21:40 PM8/1/24
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What else did the lawyer do for you? Did he ensure that all the deeds were in order and that no-one would take the house off you because the previous owner had not paid off his loan? Did you even know whether he had a second loan secured against the house? If a deposit changed hand when the contract was signed who would look after the deposit? If the deal fell through due to a problem on the part of the seller (for example the house burning down), would the buyer get his deposit back? These are all things that the lawyer should look after for you.

 

A few years ago, my wife and I put our house up for sale but failed to find a buyer. Part of the contract with the agency stated that if we exchanged contract with anybody who the agency had shown around within two years of taking the house off the market, the agency was due a commission. In my view, two years was ridiculous, but I said nothing knowing that the courts would not enforce such a clause. In the event, they did not even send me a list of the viewers they had shown around.

 

Coming back to Trevor’s suggestion of private contracts, I would not like to draw up a contract which takes into account all of these eventualities. The CNA template (WH Smith template in the UK) still needs to have the various appendices defining exactly which property was changing hands and cataloguing any liens against that property. It might also need special clauses specific to that property.

Stephen van Jaarsveldt

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Aug 1, 2024, 5:09:18 PM8/1/24
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There is a company called Equifax who will pull someone's credit record in exchange for a few bucks - you don't need a lawyer for that and it is optional... but for a few dollars, it's usually worth paying rather than taking the risk of not checking. The credit report will tell you if they can pay and have any outstanding debt secured against the property.

The bank has an incentive to ensure you are well insured and the insurance company has an incentive to check all these things too... so from a customer perspective, I merely apply for a loan and negotiate a good insurance premium - the bank and the insurance will do all the checks and then reflect what they find in my interest rate & premiums.

If someone feels like those companies might be cheating them (for example, there is not enough competition in the market to ensure bad actors are weeded out quickly) or if you know nothing about contracts or if you can't read, then a lawyer is probably a ridiculously expensive way to make yourself feel better about what you're signing. It's a choice.

Where people go off the rails with contracts quite often (and many lawyers do this too) is that you do NOT have to spell everything out in the contract. If it is commonly accepted that payment is made by e-transfer between banks and you intend to pay that way, then there is no need to agree to it specifically in the contract. Courts will assume reason.

Failure to produce or partial production of what was contracted happens so often that there are very good precedents and guidelines for how to deal with those cases - it does not need to be specified in the contract. The courts will know how to deal with it, should it come to that.

The only things you typically need in a contract are a) the specifics of this particular contract and b) all the stuff you want to handle DIFFERENTLY to the generally accepted norm. For example, I'm selling you my car and we agree that I will pay you in white pebbles, then we should probably specify that in the contract... if I'm handing over bank notes, we do not.

Same with all the other many things already implied in most contracts - you only need to specify the bits where you're deviating from the typical. As such, a 100 page contract really bugs me - it means the lawyers want to deviate from best practices quite a lot... and that cannot be good. I am far happier with a 1 page contract, because then the wisdom of crowds prevail.

S.

Stephen van Jaarsveldt

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Aug 1, 2024, 5:11:00 PM8/1/24
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Longer, more specific contracts lead to greater uncertainty, not more, because now it is up to the wording and the interpretation of it, rather than tried and tested and generally accepted guidelines which apply.

S.

Stephen van Jaarsveldt

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Aug 1, 2024, 5:12:07 PM8/1/24
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* not more... not less

typing too fast while multi-tasking

S.

vlie...@btinternet.com

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Aug 2, 2024, 4:20:16 AM8/2/24