Clarifications on maxim of law

[morag-janet-of-the-hill-family]

Here’s some information from other members that may help clarify this matter for you.

Credit-Card-Q-and-A.pdf 47 KB PDF - Click to view

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[svd2022]

hi.. thanks for this p[df. this is useful.

but do you have thoughts specific to this maxim that mark quoted. i find this to be incorrect. why should the one who claims you owe payment provide remedy as well. he is seeking remedy for the claim against you, no?

[morag-janet-of-the-hill-family]

They provide the remedy because the burden of proof is on them, this enables you to send them a conditional acceptance asking questions that lead to an agreement and that is the remedy.

[svd2022]

seems like a sleight of hand..

suppose you have a gardener has access to tresury.. he works on your lawn, and later on sends a bill/ invoice letter to you asking (claim) for payment, the letter itself is remedy? makes no sense.

[morag-janet-of-the-hill-family]

Your best bet would be to study webinars and to practise writing notices (once you learn how to) for issues that you might be dealing with. In this way you will learn to understand these processes and why they are effective in holding corporations to account when you are facing financial difficulties or they are trying to impose their wishes on you and realise you will be shown no compassion by a corporation unless you know how to address the situation in a correct and competent manner.

[svd2022]

dear morag-janet,

am in agreement with you here. one certainly hold position. that is fine.

i also agree with you that they have the burden of proof.

my question (rather academic actually) is regarding the apparent “maxim” that mark quoted in multiple places- “one who claims must provide remedy”.. this doesn’t seem right.

if the maxim was ” the one who claims has the burden of proof”, that would be fine..

[anandrah]

If you don’t understand something then by all means question it. But don’t write it off as being wrong because it doesn’t seem logical to you. You are wondering about a maxim but it has tremendous history and application behind it. Millions of practitioners and students. If you haven’t studied the law then sure, things will seem new. You could say ‘ oh that maxim is wrong because it doesn’t align with my perspective’ Okay that’s one perspective. Or you could say ‘ Whats wrong with my understanding that needs broadening because this novel concept isn’t aligning with it?’ Ultimately though what matters is practical outcomes and results. No need to get caught up on one particular academic thing, move forward and get your hands dirty. Try it out. See what happens. The reason the one making the claim provides the remedy is because it’s an inherent feature of Equity. The rules of equity are as old as recorded commerce. Being stone tablets from 5000 years ago. And as for that maxim. Sometimes the ‘remedy’ is that there is no claim to answer to. Because the claim is defective from the outset. So the remedy is that there is no controversy. Oh and its a law of medicine also. He who provides the poison provides the remedy being a loose translation from Latin

[svd2022]

dear anand;

thank you for taking the time to reply. though, I don’t agree nor find your arguments relevant. just to be clear, i am not “writing off” or writing in anything. i take this seriously.

the whole objective is to be able to stand your ground, and understand the fundamentals, and have the conviction to defend your words and actions.. otherwise you will get your as$ handed to you. (possibly a maxim of modern law 🙂 )

your medical analogy.. ” he who provides poison provides remedy” actually makes sense to me.

there are many examples of this: e.g. the antidote (remedy) is the poison itself.

anyway for everyone’s benefit, i wish to bring this back to debt..

let me ask you simple yes or no question:

are you saying that, (per the maxim):

the one who claims a debt be due must provide remedy?

[anandrah]

Hi Mahesh. The answer is yes. Morag defined it well in the sense of burden of proof, and whether we accept or conditionally accept a claim. But not agreeing with or not understanding a maxim isn’t something that is going to get your ass handed to you, as you put it. If this is something you want to learn more about then Equity is the subject to focus on. And searching that maxim or variations of it with the keyword equity included should be very helpful.

[anandrah]

I can add, the knowledge of that maxim is what we can hold against an adversary. It’s not whether ‘they’ understand it or not. Mark pointed it out so we can use it against them. You singled out debt but debt does not have any additional special status. It is just a claim.

[svd2022]

thank you for clarifying. yes, we are all in the same page…

i would not use the original maxim though, as it doesn’t align with natural law.

instead i propose two separate rules if you will:

1) the one who claims has the burden of proof.

2) the one who harms must provide remedy.

as morag and you put it well, (1) allows us to ask questions: is the claim true, is there a debt due, has someone been harmed, do they believe PN/negotiable instrument not acceptable, etc etc.

.. and if turns that the claim is true, or that you actually benefited from someone’s labor, and are satisfied with their service, then per (2) you need to provide remedy, or you would be the one causing harm to someone.