Consent, Form #05.003 (OFFSITE LINK) -memorandum of law
Black's Law Dictionary, Sixth Edition, p. 305:
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 every
agreement. It is an act unclouded by fraud, duress, or sometimes even
Willingness in fact that an
act or an invasion of an interest shall take place. Restatement,
Second, Torts §10A.
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 violence,
submission thereafter is not "consent".
See also Acquiescence; Age
of consent; Assent; Connivance; Informed consent;" voluntary.
Law Dictionary, Sixth Edition, p. 305]
U.C.C. 2-207 Additional Terms in Acceptance or Confirmation
U.C.C. § 2-207. Additional Terms in Acceptance or Confirmation.
(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchantssuch terms become part of the contract unless:
- (a) the offer expressly limits acceptance to the terms of the offer;
- (b) they materially alter it; or
- (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for salealthough the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.
Acceptance by Conduct Contract Law, Upcounsel
Acceptance by Conduct Contract Law
It means that a party can be found by the court to be in agreement with a contract based on his or her actions, even if the contract has not been signed.3 min read
Acceptance by conduct contract law means that a party can be found by the court to be in agreement with a contract based on his or her actions, even if the contract has not been signed.
What Is a Contract?
When at least two parties voluntarily enter an agreement with one another, this constitutes a contract. This document is legally binding when:
- One party makes an offer accepted by other parties (agreement).
- At least one of the parties has been given consideration (something of value) from one of the other parties.
- All parties intend it to be legally binding.
- All parties have legal ability to consent to the contract.
- The terms and conditions are followed.
A contract may be legally void if its terms are ambiguous and thus cannot be enforced, refer to future agreements that have not yet occurred, or are incomplete.
What Is an Offer?
In contract law, an offer is a promise to provide something specific if the other party agrees to do something specific in return. This is different from an invitation to deal, in which one party requests an offer from another party.
Statements of possible contract terms and requests for information are also not considered offers. Providing information in response to a request is not the same as entering a contract.
Offers that are not accepted by a stated deadline, revoked, for which requirements are not met, rejected, or responded to with a counter-offer are considered expired. In the case of a counter-offer, the offer must be accepted for a contract to exist.
What Is Acceptance?
Either words or conduct constitutes acceptance of an offer if it occurs in accordance with and in response to the specific terms of the offer. If the parties begin doing business together that reflects the terms and conditions established, a contract exists even if the offer was not accepted in writing. This is the case only if both parties are aware of the offer, however.
Types of acceptance include:
- Conditional acceptance, also called qualified acceptance, is when an individual who received an offer agrees on the condition that a specific event occurs or changes in the terms are made. Conditional acceptance is considered a counter-offer and must be accepted by the party that made the first offer before a contract exists.
- Express acceptance is when clear, explicit agreement is made in response to an offer.
- Implied acceptance occurs when the parties act in a way that indicates their agreement with the contract terms. It also occurs when a product or service is purchased; payment for the item in question is considered implied acceptance.
In the 2015 case of Reveille Independent LLC vs. Anotech International, the television company sued the UK cookware company for breach of contract. Reveille claimed that it had licensed intellectual property (IP) rights to Anotech and agreed to promote their products on their TV show Master Chef, in exchange for an agreed-upon sum.
The case hinged upon a signed deal memo that was marked with "brand conflict with Gordon Ramsay to be concluded and other minor amendments." This document was not signed by both parties and stated within that it would thus not be legally binding.
Negotiations between the party broke down, so this memo was never replaced with an officially signed agreement. Reveille then notified the defendant that the memo constituted a contract and sued for breach of contract for failure to pay.
In response, the defendant claimed that because the deal memo was not signed, no legally binding contract was in effect. They noted that the contract was subject to a condition precedent as indicated on the original deal memo.
The court determined that the memo constituted a binding contract for the reason of contract acceptance by conduct. In effect, the condition precedent was waived by the defendant's actions. The court further noted that the defendant had completed the services in concert with the written contract terms. The defendant also paid submitted invoices from the plaintiff, which was another factor establishing acceptance by conduct. The court found that the condition precedent was not valid because both parties knew it could not be met.
If you need help with acceptance by conduct contract law, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.
[Acceptance by Conduct Contract Law, Upcounsel; https://www.upcounsel.com/acceptance-by-conduct-contract-law]
Abe Lincoln's Speech, Peoria, Illinois, Oct 16,
"No man is
good enough to govern another man without that others consent."
[Abe Lincoln's Speech, Peoria, Illinois, Oct 16, 1854]
State of Texas v. Florida, 307 U.S. 398 (1939)
"Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile. Mitchell v. United States, 21 Wall. 350; Pannill v. Roanoke Times Co., 252 F. 910; Beekman v. Beekman, 53 Fla. 858; 43 So. 923; Babcock v. Slater, 212 Mass. 434; 99 N.E. 173; Matter of Newcomb, 192 N.Y. 238; 84 N.E. 950; Beale, Conflict of Laws, § 15.2. We conclude, as the Special Master found, that Green ceased to have a place of residence in Texas after 1911. About 1914 he gave up his nominal place of abode in the room which he had rented in Terrell, Texas, and which in fact he had never occupied. After that he was never identified in fact with any place of residence in Texas, and there was 425*425 nothing in his life to connect him with a Texas home other than his frequent statements that his legal residence was in Texas. While one's statements may supply evidence of the intention requisite to establish domicile at a given place of residence, they cannot supply the fact of residence there; Matter of Newcomb, supra, 250; Matter of Trowbridge, 266 N.Y. 283, 292; 194 N.E. 756; and they are of slight weight when they conflict with the fact. Feehan v. Tax Comm'r, 237 Mass. 169, 171; 129 N.E. 292; Dorrance's Estate, 309 Pa. 151; 163 A. 303. This is the more so where, as here, decedent's declarations are shown to have been inspired by the desire to establish a nominal residence for tax purposes, different from his actual residence in fact. Thayer v. Boston, 124 Mass. 132; Feehan v. Tax Comm'r, supra; Matter of Trowbridge, supra; Beale, supra, § 41C. In such circumstances the actual fact as to the place of residence and decedent's real attitude and intention with respect to it as disclosed by his entire course of conduct are the controlling factors in ascertaining his domicile. Thayer v. Boston, supra. When one intends the facts to which the law attaches consequences, he must abide the consequences whether intended or not. National City Bank v. Hotchkiss, 231 U.S. 50, 56; Dickinson v. Brookline, 181 Mass. 195, 196; 63 N.E. 331."
[State of Texas v. Florida, 307 U.S. 398 (1939)]
Black's Law Dictionary, Fourth Edition, p. 1593
SUB SILENTIO. Under
silence; without any notice being taken. Passing a thing sub silentio
may be evidence of consent.
[Black's Law Dictionary,
Fourth Edition, p. 1593]
How does the government
apply duress and what is the remedy for it?
Cruden v. Neale, 2 N.C.
(1796) 2 S.E. 70: Subjection to laws must be by consent.
"When a change of government takes place, from a monarchial to a
republican government, the old form is dissolved. Those who lived under it,
and did not choose to become members of the new, had a right to refuse
their allegiance to it, and to retire elsewhere. By being a part of the
society subject to the old government, they had not entered into any
engagement to become subject to any new form the majority might think
proper to adopt. That the majority shall prevail is a rule posterior to the
formation of government, and results from it. It is not a rule upon mankind
in their natural state. There, every man is independent of all laws,
except those prescribed by nature. He is not bound by any institutions
formed by his fellowmen without his consent"
[Cruden v. Neale, 2 N.C. (1796) 2 S.E. 70: Subjection to laws must be by
Bouvier's Maxims of Law, 1856
Consent makes the law. A contract is a law between the parties, which
can acquire force only by consent.
Consent removes or obviates a mistake. Co. Litt. 126.
non nolle, qui potest velle.
He who may consent tacitly, may consent expressly. Dig. 50, 17, 8.
nostrum est, sine facto nostro ad alium transferi non potest.
What belongs to us cannot be transferred to another without our consent.
Dig. 50, 17, 11. But this must be understood with this qualification,
that the government may take property for public use, paying the owner
its value. The title to property may also be acquired, with the consent
of the owner, by a judgment of a competent tribunal.
beneficium non datur.
No one is obliged to accept a benefit against his consent. Dig. 50, 17,
69. But if he does not dissent he will be considered as assenting. Vide
est omnia mala pati quam malo concentire.
It is better to suffer every wrong or ill, than to consent to it. 3 Co.
videtur fraudare eos qui sciunt, et consentiunt.
One cannot complain of having been deceived when he knew the fact and
gave his consent. Dig. 50, 17, 145.
consentit qui errat.
He who errs does not consent. 1 Bouv. Inst. n. 581.
videntur qui errant consentire. He who errs is not considered as
consenting. Dig. 50, 17, 116.
videtur consensum retinuisse si quis ex praescripto minantis aliquid
He does not appear to have retained his consent, if he have changed
anything through the means of a party threatening. Bacon's Max. Reg. 33.
verbis, scripto, consensu, traditione, junctura vestes, sumere pacta
Compacts are accustomed to be clothed by thing itself, by words, by
writing, by consent, by delivery. Plow. 161.
non fit injuria.
He who consents cannot receive an injury. 2 Bouv. Inst. n. 2279, 2327; 4
T. R. 657; Shelf. on mar. & Div. 449.
ratihabitio retro trahitur et mandato aequiparatur.
Every consent given to what has already been done, has a retrospective
effect and equals a command. Co. Litt. 207.
He who is silent appears to consent. Jenk. Cent. 32.
est sine me auferri non potest.
What is mine cannot be taken away without my consent. Jenk. Cent. 251.
Sed vide Eminent Domain.
Maxims of Law, 1856]
California Civil Code, Section 1589
California Civil Code
1589. A voluntary
acceptance of the benefit of a transaction is equivalent to a consent to
all the obligations arising from it, so far as the facts are known, or
ought to be known, to the person accepting.
[California Civil Code, Section 1589]
OF INDEPENDENCE, 1776
"We hold these truths to
be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness.--That to secure these rights,
Governments are instituted among Men, deriving their just powers
from the consent of the governed,"
OF INDEPENDENCE, 1776]
v. Georgia, 2 Dall. (U.S.) 419 (Dall.) (1794):
“A State does not owe its
origin to the Government of the United States, in the highest or in any of
its branches. It was in
existence before it. It derives its authority from the same pure and
sacred source as itself: The voluntary and deliberate choice [consent] of
the people…A State is altogether exempt from the
jurisdiction of the Courts of the United States, or from any other exterior
authority, unless in the special instances when the general Government has
power derived from the Constitution itself.”
[Chisholm v. Georgia, 2
Dall. (U.S.) 419 (Dall.) (1794)]
States v. Cruikshank, 92 U.S. 542 (1875):
citizen cannot complain, because he has voluntarily submitted himself
[consented] to such a form of government.
He owes allegiance to the two departments, so
to speak, and within their respective spheres must pay the penalties which
each exacts for disobedience to its laws. In return, he can demand
protection from each within its own jurisdiction.”
v. Cruikshank, 92
U.S. 542 (1875), emphasis added]