March 7, 2018
Friends and allies,
In another email list a fellow anti EMF activist mentioned the InPower Movement and the “Notice of Liability” (NOL). I will tell you of my recent correspondence and investigation into it.
A couple of days ago I watched Episode 2, the video of Cal Washington explaining each part of the NOL.
I read the NOL carefully.
The premise of the NOL, in case you are not familiar with it, is that a smart meter customer can send this 12 page document called “Notice of liability regarding trespassing technology” as a “Claimant / Libellant” along with a 3 page Affidavit to the members of the Board of Directors of an electric utility, for example, thereby creating a contract between the sender and each recipient individually. The terms and conditions of this alleged contract are extremely harsh, one sided, and unreasonable. Nobody would ever agree to them.
There is a “Joinder fee” on page 3 that supposedly makes each recipient liable to the sender for $10 million.
It also says, “Respondents / Libellants accept full liability for any and all harm or loss caused by Trespassing technology (the smart meters), for which remedy may be sought according to tort law, criminal law, strict liability, negligence, and or ultrahazardous activity (sic)” (page 10)
The supposed legal basis for this contract is the Uniform Commercial Code section 2-201. But read on because neither the U.C.C. nor any other legal authority serves as legal basis for the NOL.
However Josh Del Sol, Cal Washington, and everybody else at InPower Movement who have researched and written the NOL have made a mistake. According to the U.C.C. (and contract law in every state) one of the essential elements of a contract is that two or more parties willingly agreed to make a contract. The point is that one party cannot make a contract with another party unilaterally, without the other party’s consent.
I have written to Josh and Cal about this and posted two messages on the InPower Movement website, which they have taken down.
Neither Josh nor Cal responds to comments on the site or to emails. There is a guy named Nathan Stephenson who responds (he won’t tell you his name unless you ask). But Nathan is not interested in the legal basis of the NOL.
In the P.S. of this message I will put the specific reasons that U.C.C. section 2-201 does not apply to the NOL. This means that when you send the leaders of the utility a NOL you are NOT actually creating a contract with them. It would only be a contract if they agreed to it.
In my opinion I support the idea of creating a legal tool that smart meter customers can use to “take back our power”, the title of Josh’s first movie on this subject. However this NOL falls short. It lacks a legal basis.
The NOL quotes many documents as legal basis, including:
the Old Testament
the New Testament
the President’s Oath of Office
irrelevant Amendments of the U.S. Constitution
the Federalist papers
the Oath of the Queen of England (I am not kidding!)
“The Law Merchant”
“The Common Law”, and
the Declaration of Independence
However none of these addresses or provides legal basis for the creation / formation of a contract.
Based on this I would advise anyone considering sending a NOL to a utility leader (board member, President, etc.) to wait until Josh Del Sol has gone back to the drawing board and rewritten it so that it has a legal basis. Otherwise you will waste your precious time. Or come up with your own legal tool. If you want to win and succeed your legal tool must have a legal basis.
P.S. This is what the NOL relies on for a legal basis for the creation or formation of a contract. (page 9)
- 2-201. Formal Requirements; Statute of Frauds.
(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.
Here are the specific reasons U.C.C. section 2-201 does not provide a legal basis for creating a contract with a utility leader or representative through the NOL. These are numbered as I had them in my correspondence with Nathan but I have put #6 first.
#6 According to the U.C.C. the required elements of a contract are:
- 2-204. Formation in General.
(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.
It is essential only that both parties intend that they be bound, and the agreement must be clear enough for a court to fashion a remedy for breach of the contract.
Flowers Baking Co. v. R-P Packaging, Inc., 229 Va. 370, 329 S.E.2d 462 (1985).
When a utility provides a smart meter to a utility customer there is no “agreement”. When a utility customer sends this Notice of Liability to a utility (or anybody else for that matter) there is no “agreement”. Nor is there any appropriate remedy. Obviously a $10,000,000 fine, whether it’s called a “joinder fee” or anything else, is not an appropriate remedy. For these reasons the Notice of Liability is not and does not create a contract.
Not to mention the other reasons that U.C.C. section 2-201 does not apply, as I said:
#1 The customer on whose home the utility places a smart meter is not a “merchant”. (section 2-104 of the U.C.C. defines the term “merchant”.)
#2 The provision of a smart meter is not “a sale of goods”. (The electric utility provides it for free. The only time a utility customer has to pay extra is when the utility allows the customer to “opt out” for a special fee.)
#3 Whatever the nature of the transaction it is not “for the price of $500 or more”. Typically the smart meter is free as I said.
#4 The NOL uses this section of the UCC as the creation or making of the contract but it’s not about that. Section 2-201 is about the statute of frauds. That is a separate legal concept.
#5 The NOL fails to consider § 2-302. Unconscionable contract or Clause. (The $10 million “joinder fee” is unconscionable and would be stricken by a court.)