Requirement for Consent

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

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Supp. to Ves. jr. 161, 165, 169; Ayliffe's Pand. 117; 1 Rob. Leg.. 345, 539.

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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

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Adolph. & El 11. 469; 9 Barn. & Cr. 586; 3 Barn. & Adolph. 318, note.

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9. The consent which is implied in every agreement is excluded, 1. 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 qui errant. Dig. 2, 1, 15; Dig. lib. 1, tit. ult. 1. 116, Sec. 2. 2. Consent is excluded by duress of the party making the agreement. 3. Consent is never given so as to bind the parties, when it is obtained by fraud. 4. It cannot be 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.

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[Bouvier’s Law Dictionary, Fourth Edition, 1848]

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Therefore, an “agreement”, whatever form it takes, is NOT evidence of consent under the following enumerated 20 circumstances: 21

1. By error in the essentials of the contract. This decision is founded on the rule that he who consents through error does 22 not consent at all; non consentiunt qui errant. Dig. 2, 1, 15; Dig. lib. 1, tit. ult. 1. 116, Sec. 2. 23 2. In the presence of duress against the party making the agreement. 24 3. In the presence of fraud against either party. 25 4. If given by a person who has no understanding, as an idiot, nor by one who, though possessed of understanding, is not 26 in law capable of making a contract, as a feme covert. See Bouv. Inst. Index, h.t. 27 If you look at later versions of law dictionaries, and especially Black’s Law dictionaries, the above elements that render an 28 agreement invalid are much less clearly explained and the word “acquiescence” is added to the definition of “consent” to 29 create an opportunity for judicial and government abuses that are so prevalent today surrounding the requirement for 30 consent. The definition of consent from Black’s Law Dictionary, Sixth Edition proves this. Note the underlined and 31 highlighted text: 32

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 voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers. Consent is implied in

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every agreement. It is an act unclouded by fraud, duress, or sometimes even mistake.

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Willingness in fact that an act or an invasion of an interest shall take place. Restatement, Second, Torts §10A.

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As used in the law of rape "consent" means consent of the will, and submission under the influence of fear or terror cannot amount to real consent. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. And if a woman resists to the point where further resistance would be useless or until her resistance is overcome by force or

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violence, submission thereafter is not "consent".

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See also Acquiescence; Age of consent; Assent; Connivance; Informed consent;" voluntary

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[ Black’s Law Dictionary, Sixth Edition, p. 305]

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In the above definition, what constituted a whole paragraph in Bouvier’s regarding what constitutes valid agreement is 48 reduced to a single sentence. They also completely eliminated the requirement that the person consenting does not have 49 complete understanding of the thing agreed to, even though it STILL applies: 50

“ It is an act unclouded by fraud, duress, or sometimes even mistake. ”

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Requirement for Consent

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