Law of Consent (1 of 1)

CONSENT. An agreement to something proposed, and differs from assent. (q.v.) Wolff Ins. Nat. part 1, SSSS 27-30; Pard. Dr. Corn. part 2, tit. 1, n. 1, 38 to 178. Consent supposes, I. a physical power to act; 2. a moral power of acting; 3. a serious, determined, and free use of these powers. Fonb. Eq. B; 1, c. 2, s. 1; Grol. de Jure Belli et Pads, lib. 2. c. 11, s. 6. 2. Consent is either express or implied. Express, when it is riven viva voce. or in writing: implied. when it is manifested by skim, actions, or facts, or by inaction or silence, which raise a presumption that the consent has beets eiven. 3. - I. When a legacy is given with a condition annexed to the bequest, requiring the consent of executors to the marriage of the legatee, and under such consent being given, a mutual attachment has been suffered to grow up, it would be rather late to state terms and conditions on which a marriage between the parties should take place;. 2 Ves. & Beames, 234; Ambl. 264; 2 Freem. 201; unless such consent was obtained by deceit or fraud. 1 Eden, 6; 1 Phillim. 200; 12 Ves. 19. 6. - 4. When trustees under a marriage settlement are empowered to sell "with the consent of the husband and, wife," a sale made by the trustees without the distinct consent of the wife, cannot be a due execution of their power 10 Ves. 378. 7. - 5. Where a power of sale requires that the sale should be with the consent of certain specified individuals, the fact of such consent having been given, ought to be evinced in the manner pointed out by the creator of the power, or such power will not be considered as properly executed. 10 Ves. 308. Vide, generally, 2 Supp. to Ves. jr. 161, 165, 169; Ayliffe's Pond. 117; 1 Rob. Leg.. 345, 539. 8. - 6. Courts of equity have established the rule, that when the true owner of property stands by, and knowingly suffers a stranger to sell the same as his own, without objection, this will be such implied consent as to render the sale valid against the true owner. Story on Ag. Sec. 91 Story on Eq. Jur. Sec. 385 to 390. And courts of law, unless restrained by technical formalities, act upon the principles of justice; as, for example, when a man permitted, without objection, the sale of his goods under an execution against another person. 6 Adolph. & El 11. 469; 9 Barn. & Cr. 586; 3 Barn. & Adolph. 318, note. 9. The consent which is implied in even' aereement is excluded, I. By error in the essentials of the contract: .is, if Paul, in the city of Philadelphia, buy the horse of Peter. which is in Boston, and promise to pay one hundred dollars for him, the horse at the time of the sale, unknown to either party, being dead. This decision is founded on the rule that he who consents through error does not consent at all: non consentiunt aid errant. Die. 2. I. 15: Die. lib. 1, tit. alt. 1. 116. Sec. 2. 2. Consent is excluded by duress of the party makine the aereement. 3. Consent is never eiven so as to bind the parties, when it is obtained by fraud. 4. It 4. - 2. Such a condition does not apply to a second marriage. 3 Bro. C. C. 145; 3 Ves. 239. 5. - 3. If the consent has been substantially given, though not modo et forma, the legatee will be held duly entitled to the legacy. 1 Sim. & Stu. 172; 1 Meriv. 187; 2 Atk. 265.

cannot be given by a person who has no understanditte, as an idiot, nor by one who, though possessed of understandinu, is not in law capable of makinu a contract, as a feme covert. See Bony. Inst. Index, h.t. [Bouvier's Law Dictionaty, Fourth Edition, 1848]

Therefore, an "agreement", whatever form it takes, is NOT evidence of consent under the following enumerated circumstances: 1. By error in the essentials of the contract. This decision is founded on the rule that he who consents through error does not consent at all; non consentiunt qui errant. Dig. 2, 1, 15; Dig. lib. 1, tit. ult. 1. 116, Sec. 2. 2. in the presence of duress against the party making the agreement. 3. In the presence of fraud against either party. 4. If given by a person who has no understanding, as an idiot, nor by one who, though possessed of understanding, is not in law capable of making a contract, as a feme covert. See Bouv. Inst. Index, h.t. If you look at later versions of law dictionaries, and especially Black's Law dictionaries, the above elements that render an agreement invalid are much less clearly explained and the word "acquiescence" is added to the definition of "consent" to create an opportunity for judicial and government abuses that are so prevalent today surrounding the requirement for consent. The defmition of consent from Black's Law Dictionary, Sixth Edition proves this. Note the underlined and highlighted text:

consent. "A concurrence of wills. Voluntarily yielding the will to the proposition of another: acquiescence or compliance therewith. Agreement; approval; permission; the act or result of coming into harmony or accord. Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntaty agreement by a person in the possession and evercise of sufficient mental

Requirement for Consent

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