Virtually everyone who’s studied the legal system has heard the maxim that “ignorance of the law is no excuse”. In other words, you can’t claim to be exempt from liability under a law just because you didn’t know there was such a law.
For example, just because you didn’t know that the speed limit was 45 MPH at a particular stretch in the road will not excuse you from being ticketed for driving 60. Similarly, you can’t claim to be exempt from being charged with someone’s murder by arguing that you had no idea that murder was a crime.
In fact, presuming that “ignorance of the law is no excuse” makes perfect sense—at least in a legal system that has only a relatively few laws.
For example, under the Ten Commandments, if you’re caught fornicating with your boss’s wife, you can’t argue that—“Gee, I’d never heard that ‘Thou Shalt Not Commit Adultery’—I had no idea that sleeping with my boss’s wife was wrong.” No one will accept the argument that you were ignorant of one of the only ten laws you’re subject to.
Similarly, there are reportedly 613 “commandments” in the Torah. It’s harder to know 613 laws, but it’s doable. Therefore, every Jew is presumed to know those 613 laws and can’t duck liability for breaking any of them on a claim of “ignorance”.
Today, however, we live in a society that is probably generating 613 new laws, rule and regulations (local, state and federal) almost every day (surely, every month). Our Congress passes laws every day that they don’t bother to read. Thus, even Congress is truly ignorant of the very laws that it enacts.
Not one man or woman on the face of this earth knows all of the laws to which Americans are presumed to be subject. I doubt that there’s one man in this country who even knows 5% of all the laws to which he is presumed subject. In fact, it’s impossible that anyone could know all of our laws.
Every single American is not merely ignorant of some laws, he’s ignorant of the vast majority of the laws. Thus, the maxim that “ignorance of the law is no excuse” is absurd.
Nevertheless, that maxim survives because, if ignorance could be an excuse, then the total number of laws would have to be reduced to perhaps one thousand general principles that controlled all human activity. It might be possible for the average man to remember 1,000 laws. It’s not possible for the average man to know and remember 5,000 laws. The problem with a legal system based on relatively few general principles is that such system would preclude all special interest legislation. If our legislators couldn’t enact special interest legislation to allow one group to predate off another, there’d be virtually no need for Congress and no basis for collecting bribes (“political campaign contributions”) from special interests.
• At bottom, the “ignorance of the law” maxim is probably based largely on the third sentence of the “Declaration of Independence”:
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
It’s debatable, but it’s hard to see how the “governed” could be presumed to have “consented” to a plethora of laws that are completely unknown to 99.9% of the American people. The “ignorance is no excuse” maxim goes a long ways towards creating the presumption that the American people have “consented” to the laws enacted by our legislators. If we are presumed to know all the laws, and we haven’t made any attempt to challenge or defeat any of those laws, it can be presumed that we must’ve consented to all those laws.
• The “ignorance is no excuse” maxim is fundamental to our current legal system. I doubt that there’s a single principle that’s more axiomatic. Without the “ignorance is no excuse” maxim, every time government passed a new law they’d also have to provide means by which all of the people were educated to know and understand each new law before they could be subjected to it. If knowledge of the law was not presumed, the education requirements would make the passage of new laws virtually impossible.
In fact, if the “ignorance is no excuse” maxim were ever defeated, 90% or more of what currently passes for government would probably disappear.
On the other hand, so long as “ignorance is no excuse” prevails, our legislators, administrators and judges can pass any fool law, regulation or ruling they like, no matter how stupid, irrational, unreasonable, unconstitutional or self-serving—and all the poor slobs out there in TV-land will be presumed to know the law, consent to the law, and be bound by every idiocy our Congress can imagine.
• I just received an email from a friend who quotes a particular case (Safety Casualty Co. v. McGee, 127 S.W.2d 176, 133 Tex. 233, 121 A.L.R. 1263 (Tex.Com.App.)) that was decided on Texas back in A.D. 1939. This case declares an exception to the legal maxim that “ignorance of the law is no excuse in the eyes of the law”.
I haven’t read the case. I presume that the file sent to me is accurate. If it is, the implications are huge.
Admittedly, this is only a Texas case that was decided 72 years ago. Therefore, its application as an authority in other States is doubtful. Its authority even here, on Texas, is also questionable.
But the fundamental principle is profound, probably timeless, and might be argued whenever the government relies on deception to ensnare us with contracts (two signatures) and perhaps even pledges (one signature).
According to the Texas courts,
“When once it is established that there has been any fraudulent misrepresentation, * * * by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry. He has a right to retort upon his objector: ‘You, at least, who have stated what is untrue, * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.”
Note the reference to “a contract”. Contracts are usually litigated at law.
Trusts and fiduciary relationships are litigated in equity. Fiduciary relationships can be found when one person “relies” on another person’s “fairness and honesty”.
The previous excerpt from the Texas court at least implies that “fraudulent misrepresentation” may be an issue to be decided in equity rather than at law—even if the fundamental subject matter is a contract at law.
I.e., even though the contract would be litigated at law (where ignorance is no excuse), if the process of drawing up and agreeing to the contract involved one party’s “reliance” on the other party’s “fairness and honesty,” that “reliance” might open the door to challenging the rights and duties created by the contract in equity rather than strictly at law.
The court implies that a proper challenge brought in equity might defeat a contract negotiated at law.
Note that the maxim “ignorance is no excuse in the eyes of the law” certainly applies at law. But does that maxim also apply in equity?
• Lemme illustrate:
Suppose the Articles of Confederation, The Constitution of the United States, and your State’s constitution established that your State was a State of the Union (such as, The State of Texas, The State of Illinois, etc.). Let’s refer to each of the States of the Union as “The State”.
Suppose that the government of your State of the Union had been supplanted by an administrative division of a territory of the United States. Let’s call that administrative division of a US territory “this state”.
It would be almost impossible for most people to distinguish the difference between the government of “The State” (of the Union) and the government of “this state” (of the US territory). This impossibility would be largely based on the common presumption by the people that, surely, our government would never behave so deceptively as to change our “States of the Union” into territories.
But, if such deception took place, “The State” would be the de jure, constitutional State of the Union. “The State” would have real authority over the people of that “State”.
On the other hand, “this state” might be a de facto, conglomerate of non-constitutional administrative agencies that had great power but no constitutional authority.
Suppose that “this state” was masquerading as if it were “The State” and expressly or implicitly claiming an authority that “this state” could not have. Would that masquerade be evidence of deception? I.e., would the agencies and employees of “this state” claim to exercise an authority that the people of The State did not delegate to them? What if the people “relied” on the false or deceptive claims of “this state”. Could such false claims of authority (express or implied) be evidence of fraudulent misrepresentation? Could reliance on such false claims by “this state” open the door to challenging those claims in equity? Could fraudulent misrepresentation by “this state” open a door to a defense in equity that might shield a defendant from liability under the laws of “this state”?
I think so.
Thus, a defendant who could demonstrate that he had “relied” on claims by “this state” which turned out to be false or deceptive might be exempted from the maxim that “ignorance of the law is no excuse in the eyes of the law.” Instead, he might still be able to defeat his alleged personal liability under the law of “this state” if he could show that he had “relied on” (trusted) the “fairness and honesty” of the legislators of “this state” who wrote the law and/or “relied on” of the administrative agencies (police, etc.) of “this state” that sought to enforce the law against him—and that these legislators and/or administrators had betrayed his trust.
I.e., as one of the People of The State of Texas, I rely on and trust the legislators and administrators of “Texas” to write laws that are subordinate to The Constitution of The State of Texas that apply within the venue of The State of Texas. By my reliance, I have established an implied fiduciary relationship with those legislators and administrators. If those legislators and administrators have taken an Oath of Office to support and defend The Constitution of The State of Texas, they have expressly validated my implied trust in and reliance on those legislators and apparent officers of the Executive branch of government.
So, if the legislators and administrators (apparent officers of the executive branch of the de jure government of “The State”) start writing or enforcing laws of “this state” that are not under the authority of The Constitution of The State of Texas, or which are intended to operate within the geographic borders of The State of Texas, then they have breached their fiduciary obligation to me.
In theory, if I were adept at making this argument, I might be able to use it to walk out from under laws of “this state”—regardless of whether I was ignorant of those laws, or not. By means of this argument, we might turn the issue from one of my “ignorance” (which I cannot win) to one of the government employees’ deception and betrayal of my reliance on their “fairness and honesty”—I can win.
• Here’s the text of the case that appears to defeat the “conclusive presumption” that “everyone knows the law”. The comments between bracket [ ] are my own insertions and not part of the original court determination.
Safety Casualty Co. v. McGee, 127 S.W.2d 176, 133 Tex. 233,
121 A.L.R. 1263 (Tex.Com.App.), 1939
The general rule, often repeated, is that fraud cannot be predicated upon misrepresentations as to matters of law. The reason usually given for the rule is that everyone is presumed to know the law, and hence has no right to rely upon representations made to him by another, and that such representations are to be treated as mere statements of opinions and not of fact. Black on Rescission and Cancellation (2d Ed.) Vol.1, pp. 186-188, Sec. 71; 12 R.C.L. pp. 295, 296, Sec. 59.
This rule, like most general rules, is subject to exceptions. As early as 1857 Associate Justice Wheeler said of it: “The general rule, it has been truly said, is justified by the considerations of public policy; and yet so harsh a rule, founded upon a presumption so arbitrary, ought to be modified in its application by every exception which can be without defeating its policy.” Moreland v. Atchison, 19 Tex. 303, 310. He expressed the opinion that corruptly deceiving one as to matters of law amounts to fraud in the legal sense, where advantage is taken of the ignorance of the party.
One of the well established exceptions to the general rule is that relief may be granted on account of misrepresentation of law or of legal rights when there is a relation of trust and confidence between the parties. 12 R.C.L. pp. 296, 297, Sec. 60; Black on Rescission and Cancellation (2d Ed.) Vol. 1, pp. 188, 189, Sec. 71; 26 C.J. pp. 1207-1209, Sec. 106.
The text of Ruling Case Law, immediately following the statement that relief may be granted because of representation of law where there is a relation of confidence, contains the following; “The same is true where one who himself knows the law deceives another by misrepresenting the law to him, or knowing him to be ignorant of it, takes advantage of him through such ignorance, or where the person to whom the representations are made relies upon the supposed superior knowledge and experience of the other party and on his statement that it is unnecessary or inadvisable for him to consult a lawyer.” R.C.L., p. 296, Sec. 60.
[Suppose the police stopped me to give me a traffic ticket. Suppose they wanted me to sign that traffic ticket. Suppose I asked if it were necessary or advisable for me to consult consul before I could sign. Suppose the officer assured me that there was no liability incurred by signing the ticket. I would be clearly “relying” on the traffic cop’s “fairness and honesty”. Could I later use my reliance to challenge the legal effect of the traffic ticket?
Suppose I expressly referred to the previous quoted text from Ruling Case Law and this Texas case, and I therefore refused to sign a traffic ticket (or perform any other act creating possible rights or duties) without first consulting an attorney. Such refusal might get me thrown in the slammer and cause me to pay a substantial sum to retrieve my car out of the city vehicle pound. But it would also gum up the traffic ticket process considerably. The cop might have to spend an hour or more hauling me to jail, processing paperwork, etc. That’s an hour of more that he couldn’t be issuing tickets to meet his “quota”. That kind of resistance, if practiced widely, might ruin the profitability of the traffic ticket racket.
It occurs to me that whenever the police are interrogating a subject without an attorney, there may be a presumption that the suspect is relying on the police officer’s “fairness and honesty”. Once the suspect “lawyer’s up,” he may be implicitly saying “I don’t trust you cops”. If so, once the suspect therefore expresses his distrust for cops, the cops may have to stop talking to him.
This raises the possibility that the “de facto officer” doctrine may be ultimately based on the private individual’s expression of trust and reliance on the police officer. If you trust him, he’s your fiduciary. If you trust him and he’s your fiduciary, you are his beneficiary and you may be obligated to answer your fiduciary’s questions.
This is pure conjecture, but if we assume that the de facto officer doctrine is ultimately based on our trust in and reliance upon those individuals who appear to be peace officers (but are not)—then what would happen if a police officer approached you and your first remark was “I don’t trust you”? Could the police officer (or even a judge) proceed against you without you first “relying upon” or trusting in his “fairness and honesty”?
What is the authority or power of a de facto officer over an individual, once that individual has declared that he does not trust the de facto officer?
The text of the Texas case continues:]
Similarly, Mr. Black says: “And again, aside from such relationship (that of trust or confidence), if one of the parties is ignorant of the law or of his legal position or rights, and the other is aware of this fact, and is also perfectly informed of the legal principles, rules, or statutes applicable to the existing state of affairs, and takes advantage of his superior knowledge and of the other’s ignorance, and so misrepresents and misstates the law as to induce him to enter into an inequitable bargain, or to part with rights or property which he might have retained, it is considered such fraud as to justify a court of equity in giving relief.” Black on rescission and Cancellation (2d Ed.) Vol. 1, pp. 188, 189, Sec. 71.
[OK—if the other party (the traffic cop) is “perfectly informed of the legal principles, rules, or statutes,” and takes advantage of his “superior knowledge” to deceive an unwitting driver into entering into an “inequitable bargain” or parting with “rights and property he might have retained,” the driver might be able to file a complaint in equity against the traffic cop.
But what if the traffic cop is no “perfectly informed” concerning the law? What if the traffic cop is almost as ignorant of the law as the driver he’s trying to ticket? The “perfectly informed” text quoted by the court would seem to exempt the traffic cop from liability for misquoting the law. I.e., there can be no deception or misrepresentation unless the party making the false claims knows those claims are false.
But, if the traffic cop denied that he was “perfectly informed” concerning the relevant law, how is it that he, too, couldn’t be charged with “ignorance of the law is no excuse in the eyes of the law”?
When false statements are made, I see only two possible explanations: 1) ignorance (mistake); and 2) fraud (intent to deceive). Therefore, once it’s established that a police officer has made a false statement concerning the relevant law, the officer must either admit that he was ignorant of the law (which is inexcusable in the eyes of the law) or that he acted intentionally and therefore fraudulently (which is an offense in equity).
If ignorance of the law is no excuse for me, it’s no excuse for the police officer either.
Nevertheless, police officers are routinely exonerated by the courts for their various little “mistakes” as to law. Why?
I’m not sure.
But I’m beginning to suspect that the courts allow these “mistakes” in the context of a fiduciary relationship wherein the individual being tried for an offense is presumed to have begun his “transaction” with the police officer by trusting and relying on that officer. It would be the individual’s initial trust/reliance on the “officer” that would create the fiduciary relationship. If the individual trusted the de facto officer, any bad result that flows from that trust might be on the individual’s head rather than the cops.
To illustrate the principle, suppose you’re coming home from a saloon at night and you’re too drunk to drive. Suppose you trust someone who is less drunk than you to drive your car, and he wrecks it, causing you to suffer serious injury. If the second drunk didn’t ask to drive your car, but you trusted him to do so, I wonder if the second drunk is responsible for the wreck, or if you are.
I don’t know the answer to this hypothetical illustration. But I’m beginning to suspect that if you’re dumb enough to trust someone who shouldn’t be trusted, the courts might be inclined to presume you are responsible for any subsequent damaged based on your imprudent placement of trust or reliance on a person who was unworthy of your trust.
I’m reminded of a businessman’s duty of “due diligence” as part of entering into agreements. Due diligence requires that you fully investigate another party or the relevant facts and law of a transaction before you enter into it. If your diligence is insufficient, you may be held liable for whatever adverse consequences you subsequently suffer.
On the other hand, if you perform your due diligence and you suffer subsequent injury, your case against the responsible party may be much stronger.
What, essentially is “due diligence”? I’d say it’s an expression of distrust. The reason I’m checkin’ you out before I sign any contract with you is ultimately because I don’t trust you.
If I perform my due diligence before we enter into an agreement, that agreement might be a contract to be decided at law. If I fail to perform my due diligence, that would be evidence that I trust you and therefore our agreement is of a fiduciary nature. If our initial agreement is of a fiduciary nature, it would follow that any subsequent claims of injury would be decided by a court of equity.
Again, this is pure speculation that’s offered as a possibility and a “though exercise” rather than a statement of fact.
The text of the Texas case continues:]
The opinion by Associate Justice O’Quinn in Garsee v. Indemnity Insurance Company of North America, Tex.Civ.App., 47 S.W.2d 654, 656, 657, contains the following: “The general rule is that misrepresentations or concealment as to a matter of law cannot constitute remedial fraud, because everyone is presumed to know the law, and therefore cannot in legal contemplation be deceived by the erroneous statements of law, and such representations are ordinarily regarded as mere expressions of opinion, on which the hearer has no legal right to rely. 12 R.C.L. p. 295, Sec. 59; 26 C.J. p. 1207, Sec. 106(E). But it is equally well settled that misrepresentations involving a point of law will be held actionable misrepresentations of fact if it appears that they were so intended and understood. Likewise, redress may be had if one party possessed superior knowledge and took advantage of the other party’s ignorance of the law to mislead him by studied concealment or by misrepresentation, and this is especially true when confidential relations are obtained.”
[So far as I know, all fiduciary relationships are confidential.
Note that the court distinguishes between a misrepresentation of law and a misrepresentation of fact.
It is appears possible for a police officer to get away with a misrepresentation of law—but not of fact.
It also appears that a “misrepresentation of law” will be deemed an actionable misrepresentation of fact—if the misrepresentation was intended by the police officer (government employee) and “understood” (agreed to) by the ignorant suspect/defendant who relied on the officer. The law apparently becomes a “fact” whenever it is intentionally misrepresented.
The court implies that the easiest way to prove fraud in equity is to prove misrepresentation by the police officer of fact. Maybe, we can prove misrepresentation of law, maybe not. But we can prove misrepresentation of facts.
For example, suppose the police officer sought to issue a traffic ticket wherein the location of the alleged offence was alleged to be in “this state” (say, TX or OK or NY) rather than within the borders of a State of the Union such as “The State of Texas”. Suppose the traffic cop alleged the venue was within Dallas County” (of “this state”) rather than within “The County of Dallas” of The State. Suppose the police officer alleged himself to be a “peace officer” of The State rather than an employee of “this state”. If the “The State vs this state” hypothesis were valid, and “The State” and “this state” really do represent two different venues, then any police officer who claimed that you committed and offense in the fictional venue of “this state” rather than within the de jure venue of “The State” would appear to be guilty misrepresenting facts relevant to his claims.
According to the last text from the Texas court, misrepresentation of such facts may be evidence of fraud and grounds to attack the police officer’s allegations.
The Texas court case continues:]
“But where one party, who possesses superior knowledge as to the law, takes advantage of the other party’s ignorance in that respect and intentionally makes a misrepresentation concerning the law for the purpose of deceiving the other party and actually succeeds in that respect, he may be held responsible for his conduct.” Other authorities support the principle announced in the foregoing quotations. Schaeffer v. Blanc, Tex.Civ.App., 87 S.W. 745; Barber v. Keeling, Tex.Civ.App., 204 S.W. 139; Banker’s Life & Loan Association v. Pitman, Tex.Civ.App., 115 S.W.2d 1008; Madison Trust Company v. Helleckson, 2126 Wis. 443, 257 N.W. 691, 96 A.L.R. 992, and note, page 1001 and following; 15 Texas Law Review pp. 133, 134.
[The police can be held personally liable for misrepresentation (fraud).]
“Although defendant in error was not uneducated, not illiterate, and not without business experience, he was, when the representation was made to him, ignorant as to the terms and provisions of the Workmen’s Compensation Law and without experience in calculating the amount of compensation payable under it. Dr. Mann, on the other hand, was an experienced adjuster of claims under that law, understood its provisions and knew how to determine the compensation payable to an injured employee either for total disability or for partial disability. The parties in their negotiations for settlement were not on equal footing. There was great disparity between the knowledge of the expert adjuster and that of defendant in error with respect to the particular subject about which the representation was made. According to the jury’s findings, Dr. Mann used his superior knowledge of the subject in which he was an expert to take advantage of the ignorance of defendant in error as to that subject and misled him.”
[Contracts differ from trusts in several regards. One such difference is that contracts at law always presume the two parties to have roughly equal in terms of bargaining power, rights and duties. In a contract, make and equal exchange of their relative rights and duties.
Trusts, on the other hand, are based on inequality. In broad strokes, the beneficiary has almost all of the rights; the fiduciary has almost all of the duties and control.
When the court wrote, “The parties in their negotiations for settlement were not on equal footing. There was great disparity between the knowledge of the expert adjuster and that of defendant . . . ,” the implies that their relationship was based on trust, reliance and a fiduciary relationship subject to equity rather than law.]
When once it is established that there has been any fraudulent misrepresentation, * * * by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry. He has a right to retort upon his objector: ‘You, at least, who have stated what is untrue, * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.” D’Labbe v. Corbett, 69 Tex. 503, 509, 6 S.W. 808, 811, Buchannan v. Burnett, 102 Tex. 492 495, 119 S.W. 1141, 132 Am.St.Rep. 900.
[That’s as much as I have on this case. I suspect that my text on this case is incomplete. I haven’t seen the actual case, and if any of you locate it, please forward a copy to me.
But note that the court is saying:
1) You must first establish there has been a “fraudulent misrepresentation” committed by your adversary. This “fraudulent misrepresentation” might be of law, but is easily to prove as a misrepresentation of fact. More, you’ll have to prove that this false statement of fact or law was made intentionally—not by accident. You must be able to show that your adversary “knew or had reason to know” that his statements were false.
2) Then, you have a right to say to your adversary, “‘You, at least, who have stated what is untrue, * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.”
It appears this statement may be sufficient to establish that you relied on your adversary’s “fairness and honesty” and therefore the entire proceeding can be attacked in equity and presumably estopped based on your adversary’s deceit, misrepresentation and fraud.
The previous article is the story of two competing maxims of law: 1) Ignorance is no excuse in the eyes of the law; and 2) fraud vitiates all agreements.
Ignorance is bad.
Fraud is worse.
Fraud trumps ignorance.]