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Gold/Mining/Energy : Crystallex (KRY) -- Ignore unavailable to you. Want to Upgrade?

To: Libertarian22 who wrote (7218)	3/20/1998 7:04:00 PM
From: Moot	Read Replies (2) \| Respond to of 10836

Beaten to Death Arguments In a recent post, Bob Schellenberg claims that the legal arguments have been beaten to death. If Mr. Schellenberg is suggesting that all questions and concerns about legal issues that have been raised on this thread or any other have been resolved, I disagree. Take, for example, the matter of the POA by means of which the transfer from Lemon to Torres was executed. (I want to make absolutely clear at the outset that I am not going to argue that this transfer was illegal. I simply want to suggest that, as far as I'm aware, no compelling argument has been advanced that has put questions surrounding this matter to rest. Yet, for the most part, the POA is treated as though it had been beaten to death.) Questions concerning the POA have been raised time and again over the past many months. They have surfaced again largely as a result of Asensio's recent (and, to this point, unsubstantiated with documents) claim that Lemon had revoked the POA several months prior to the transaction. Time and again, what has now become a stock response has been offered: Lemon had a prescribed number of days in which to contest the transaction executed under the authority of the POA. She did not. Therefore, the transaction was legal. To lay something of a foundation for what follows, I think it is worth observing that property rights have lain at the heart of Western civilization for many centuries. They influence almost all aspects of our social, economic, and political lives. As a consequence, an enormous body of law has been developed that addresses these rights. It is extensive and complex. I have absolutely no doubt that the stock response to the POA issue that I outlined above is someone's interpretation of an actual point of law. I do not believe, however, that it has necessarily been properly applied. It is much too simple and is open to contingencies that would be inconsistent with the statutory protection of property rights. In short, this point of law may be applicable to those instances where a POA is used to legally execute a transaction, thereby giving the assignor a specified period of time in which to consider whether the transaction was in his or her best interests and contest it if desired, but it is inconceivable to me that it would be invoked in an instance where there was the possibility of an illegal act such as fraudulent representation. Again, I am not saying that such an act took place. I am only saying that the POA 'asked and answered' argument is not compelling. If our friend Marcos (sorry Marcos--the name seems to work) had fraudulently represented himself as Morales in order to execute the transaction, or if poor old Dot had been held hostage for the prescribed number of days available to her to contest the action, it is hard to believe that an act of omission, if you will, would have the effect of making legal what would otherwise have been an illegal act. It just doesn't wash. While I have never been satisfied with the stock POA response, I didn't give the matter of the POA much weight. Early on, it seemed to me that if there had been some irregularity in the Lemon/Torres transfer, then PDG (acting through MEM or the CVG) would have brought it to light. As the details of the action initiated by Inversora Mael became widely available, however, there was clearly a tactical legal reason why this might not have been done even if the transfer had been illegal. It is true that such a revelation would have left Mael without legal standing in the case; but in cutting the legs out from under Mael, PDG might have found its own legs severed with the same sword. In proving Mael had no legal claim to the property, it might have been shown that there was a prior rightful owner who did. I think that might not be in PDG's best interests. [I would like to point out that if the foregoing or something similar were ever shown to be the case, the CSJ would not be contradicting its previous ruling if at some later date it stripped Mael of title. This claim of 'the Court can't contradict itself' has been raised repeatedly, and is one of the reasons I have stressed the scope of the first CSJ ruling in several previous posts.] The foregoing was all speculation, of course, in order to make a point--not in order to make a claim. Frankly, I would be very surprised to see the POA become an issue. I am still not convinced, however, that there aren't some issues surrounding the Lemon/Torres transfer that may yet play into this matter. This is particularly so in light of the fact that both Baumeister & Brewer and Dr. Corredor make the effort to address the matter in their legal opinions. I'm digressing, so it's clearly time to bring this to a close. Many of the legal issues remain unknown and, for that reason alone, I don't think the legal arguments have yet been beaten to death. That holds for many other arguments as well. Regards.