When Consent Is Without Genuine Consent Essay Example

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When Consent Is Without Genuine Consent Essay Example

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When Consent Is Without Genuine Consent Essay


Puffing on a carbolic smoke ball, a woman received a reward of £100 in a unilateral contract – When Consent Is Without Genuine Consent Essay introduction. Having sex with a woman who is mentally inadequate is rape, though defendant alleged consent.  Undergoing surgical operation without informed consent is assault, battery or trespass.  Without genuine consent, contracts are unenforceable.  Consent therefore, is the heart of any contractual relationship, the moral component that propels the enforcement or non-enforcement of a juridical tie.   Contract law provides numerous legal principles to ensure that parties are bound with their promises; and innocent parties are guaranteed relief for whatever damage or injury they may have suffered under the contract.

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When Contract Is Without Genuine Consent

The Louisiana Civil Code on Conventional Contracts (Book III, Title IV, Art. 1906) provides that: “a contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished (Gruning, l999).” Contract law is based on the Latin phrase pacta sunt servanda  which means “agreements must be kept” (Wehberg, l959).  The right to enter into contract is one of the liberties guaranteed to the individual by the Constitution of the United States, which provides that: (underscoring mine) “No State shall x   x   x   x   x pass any Law impairing the Obligation of Contracts, x  x  x  x (Article 1, Section 10, Clause 1).” However, the constitutional prohibition against the impairment of contractual obligations refers only to legally valid contracts.

The contractual stipulations must not be contrary to mandatory and prohibitive laws, for the law forms part of the contract.  The parties to a contract cannot deprive a competent court of its jurisdiction   because jurisdiction is fixed by law, and not by the will of the parties.  Where there is no law in existence or when the law is silent, the will of the parties prevails unless their contract contravenes the limitation of morals, good customs, public order, or public policy.

Almost all contracts are consensual.  They are perfected by mere consent of the parties regarding the subject matter and the cause of the contract.  When all the essential requisites for the validity are present, they are obligatory in whatever form they may have been entered into.  From the moment the parties come to an agreement on a definite subject matter with valid consideration, they are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which according to their nature, may be in keeping with good faith, usage and law (De Leon, l995). Accordingly, if a party refuses to perform, the injured party has a legal action for damages or for enforcement of the obligation.


The law on contracts lays emphasis on consent or concurrence of wills, the meeting of minds between two contracting parties which takes place when an offer by one party, is accepted by the other. It can be made orally, in writing or by action or inaction precisely indicative of consent.  The offer must be certain and acceptance absolute.  An offer is a promise to act or to refrain from acting on condition that the terms thereof are accepted by the person (offeree) to whom it is offered. Acceptance, on the other hand is the manifestation of the offeree of his assent to the terms of the offer.  It may be expressed or implied or inferred by act or conduct (Paras, l978).  Article l927 of Louisiana Civil Code, provides that, “Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made (Gruning, l999).”

 The above precepts are explicit in a notable 19th century English case, Carlill v Carbolic Smoke Ball Co. (l893) 1 QB 256, where a drug company posted an advertisement which offered £100 to any person who contacted influenza after using in a specified manner and for a period of time, its product, smoke balls. Earnestly, the company deposited £1000 in a bank for the reward.  Plaintiff, relying on the advertisement, bought a smoke ball and used it as directed; nonetheless, she got the disease giving her the legal right to demand performance. The defendants claimed no liability on the ground that no enforceable contract has been created between the company and the plaintiff for lack of consideration and acceptance. The court ruled in favor of the plaintiff, adjudging that a unilateral contract has been effected. The offer of reward as ascertained by the court is a unilateral contract whereby only one party makes a promise. By advertisement, an offer of a unilateral contract may be made to the whole world, thereby the requisite that acceptance be conveyed to the offeror is dispensed with, the offeree accepts by carrying out the condition which is the consideration for the promise (Ha-Redeye, 2007). A Professor in Master of Accounting Program in Nova Southeastern University in his commentary on contract clearly supports this argument, putting forward:

In a unilateral contract, an act is done in consideration for a promise. That is, the exchange for one party’s promise is not another promise, but the performance of some act by the other party. Note that a unilateral contract can be accepted only by performing the particular requested act. There is no liability if one party fails to perform the requested act since no promise is made. However, once the party performs the requested act, he can enforce the contract. Actual performance is necessary before the contract is formed. In effect, the promise made by a party in a unilateral contract is binding (Cavico, n.d. p.5).

The case is a good example of a suspensive conditional obligation or “one the fulfillment of which will give rise to an obligation (or right).  In other words, the demandability of the obligation is suspended until the happening of the uncertain event which constitutes the condition (De Leon, l995.).”  Contract is one of the sources of obligations, the legal tie or relation itself that exists after a contract has been entered into.  Hence, there can be no contract if there is no obligation.

When is Consent Genuine

Consent presupposes legal capacity and the fulfillment of conditions, should any be attached. Unless it is shown in some fashion that shall cause consent to be understood by the other parties to the contract, consent can have no effect, being a mere operation of the mind (Gruning, D., l999).  People may disagree as to the meaning of consent.  Dr. David Bryden, an Associate University Professor, theoretically claimed in his article, “Redefining Rape” that consent is best understood as a “subjective or psychological phenomena”.  On the contrary, Alan Wertheimer, a political philosopher in his comment to the mentioned article claimed that consent is a “performative or action and not as a subjective phenomenon.”  Wertheimer further argued that it is a moral issue and that whatever constitutes a valid consent will always be settled by moral argument (Wertheimer, 2000). Actually, it is not about the meaning of consent that some people disagree, but about the principles of consent

Medical Criteria of Consent Determination

In medical malpractice suits, the most common allegation is failure to obtain informed consent.  This is in spite of the fact that in the United States, obtaining a patient’s informed consent to medical and surgical treatment is brooded in enfranchisement standards and is constituted and directed by professional ethical codes, legislations, regulations and case law (Marson, Dymek, Geyer, cited in “Informed consent”, 2006, p. 1).  According to a woman who underwent a surgery in her leg in 2004, shortly before her surgery, she was presented a consent form to read and sign without her reading glasses.  The preoperative process focused not on the risks, but mostly on the benefits of the surgery (Foreman, cited in “Informed consent”, 2006).  Patients are at risk of harmful surgical aftermaths without informed consent.  Accordingly, health providers and physicians are also put on the line for negligence or malpractice and made to suffer for damages.

Hospital must meet certain requirements under the Medicare Conditions of Participation in order to be reimbursed under the Medical Program.  One of these includes informed consent requirements. As stated by the regulatory guidelines, “an authorization from a patient who does not understand what she/he is consenting to is not informed consent” (Centers for Medicare& Medicare Services, cited in “Informed consent”). It is required that physician must discuss with the patient the important information such as, the diagnosis, the nature of the proposed treatment, its probabilities of success, its risks and benefits, other options and the consequences of not submitting to treatment.  These material and relevant information, allow patients to make knowledgeable decisions on the proposed procedure.

It is worthy to note that the doctrine of informed consent is founded on the cardinal right of a person to ascertain what is to be performed on his body.  In the case of Schloendorff,

The Court said: Every human being of adult years and sound mind has the right to

determine what shall be done with his own body; and a surgeon who performs

an operation without his patient’s consent commits an assault, for which he is

liable in damages, except in cases of emergency where the patient is unconscious,

and where it is necessary to operate before consent is obtained. (Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. l914).

In a Florida lawsuit, a question arose on how much knowledge a patient must know sufficient to give informed consent for the use of a robot for surgical operation.  In the said case, filed by the estate of the patient who died as a result of the operation, the physicians employed the assistance of a robot to remove a cancerous kidney of the patient; thereby accidentally clipping off the aorta and vena cava, causing her death.  It is typical that patients are not informed what surgical instruments would be used during the operation; the use of technology however, must be a factor to consider substantial in arriving at decisions (“Informed consent”, 2006).

Legal Criteria of Consent Determination

The legal criteria of consent require the presence of three elements generally expected of almost all consent determinations.  These elements are: knowledge, intelligence, and voluntariness. A person entering into a contract must be knowledgeable of the nature of the action and its consequences.  He must have the intelligence cognizant of the gains and perils of the said action and the ability to process the information rationally, free of any unreasonable coercion to choose to or refrain from the activity.  Equally important to determine a person’s competency to give consent are judicial determination by a court of law required by statutes or case law and clinical determination consistent with law, standards and regulations (Stavis, l991).

In determining the legality of sexual relations, the inherent principle of individual consent is of primordial concern.  According to the New York Supreme Court, in People v. Easley, the issue of capacity to consent cannot be ascertained in accord with exact and rigid standards.  In the said rape case, the court said that mentally disabled persons may have different levels of capability or incapability to consent to sexual activity. Despite the claim of the defendant that the victim gave her consent to sexual intercourse, the Court, avowing his conviction pronounced an established criminal law principle that there is no consent at all where the consent is given by one who is mentally incapacitated.  The Court further said that, although a woman is not aware of the invasion of her rights when the incident happened, the accused has divested her completely of her sexual option not being knowledgeable of the nature of sexual intercourse and the social norms thus, deserves the severe penalty imposed by law for a rapist (l991).

Interpretation of Contract

As posited by the court in Smith v. Hughes, (1871) LR 6 QB 597 (Queen’s Bench Division), in contract formation, the objective intent is adequate. The court distinctly articulated:  “If whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”  However, in ascertaining what the parties consented to, the court ruled to include both the subjective and objective elements.  It said: “A party who alleges the formation of a binding contract because a reasonable person in her position would have been entitled to infer a contractual offer can only succeed if, in addition, she subjectively understood that there was an offer (Zeller, 2004).”

Thus, it is important that consent be genuine, that is, immanent and evident or discernable. That it is not only an act performed within the mind, but it is intelligibly capable of being seen or noticed. “Where the words and clauses of a written contract are in conflict with the manifest intention of the parties, the latter shall prevail over the former.  It is a cardinal rule in the interpretation of contracts that the intention of the contracting parties should always prevail because their will has the force of law between them (U.S. Commercial vs. Halili, 93 Phil. 271).”

The law, to forestall error in interpreting written contracts, established rules of evidence applicable to prove the existence of genuine consent (Gruning, l999).  In a global context however, there is no uniform rule in existence among common law countries as far as parole evidence rule is concerned.  It is not even consistent within the United States (Moore, D. H. cited by .Zeller, 2004).

Remedies for Breach of Contract

It is necessary that contracts be enforced to give people the power to make promises that others can really relied on, unless there is a practical reason not to do so.  Vices of consent and incapacity are conditions under which a promise may not be enforced for they affect consent.  When consent to a contract is vitiated, the contract is voidable.  Voidable contracts are those where one of the parties is incapable of giving consent to a contract; those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud.  These contracts are binding unless they are annulled by a proper action in court, but susceptible of ratification (Paras, l978).

Where contracts are binding, the law on contracts provides remedies for breach. Contract breakers are not punished under the law of contracts. The law only tries to cast off unjust enrichment and restore the innocent party in the situation had there been performance. Breaches of contracts do not include punitive punishment available to torts to punish and at the same time deter actions which are highly offensive to society.  Injured parties are only entitled to damages. There are three interests that can be restored by the recovery of damages in breach of contracts: restitution, reliance and expectation interests.  Restitution interest is the interest to get the money back that an injured party has paid in performing his part of the contract.  Reliance interest is the interest in getting back the value lost or opportunity cost because the party relied on the performance of the contract and lastly, expectancy interest which is interest or damages that the injured party would have gotten had the contract had not been broken (Dawson, Harvey and Henderson, 2003).

Consider the case of Hawkins v. McGee, Supreme Court of New Hampshire, 1929. 84 N.H. 114, 146 A. 641.  Hawkins entered into a contract with McGee, a doctor to perform surgery on his hand. The doctor assured him of 100% perfect outcome, but did not.  Hawkins sued McGee for damages. The jury awarded damages; McGee moved to set aside the verdict due its unreasonableness. Hawkins appealed when the trial judge reduced the damages.  It was held “that the damages should be the difference between the values of what the patient could have received if the contract had been carried out and the value which the plaintiff now possesses plus incidental losses. This is known as expectation interest, which means damages shall be awarded such that the plaintiff will be well off as he would have been if the contract had not been breached (Dawson, p. 3-7).”

In other cases, where expectation damages are insufficient, restitution and reliance may be substituted. In Chicago Coliseum Club v. Dempsey, appellate Court of Illinois, First District, 1932. 265 Ill .App. 542, the parties agreed to put on a boxing match.   The defendant who had made previous arrangement to fight someone else at the same time abdicated the agreement  thus, plaintiff sued for lost profits and other expenses incurred.  The court recommended reliance interest measures only for damages due to uncertainties and the speculative nature of the expectation and restitution interests in the form of lost profits and expenses (Dawson, pp. 89-95).


In the scheme of entitlements, consent is the essence of contract law for the holder of a right to be legally obligated.  It is the moral component, the basis of contract law that distinguishes valid from invalid transfer of unforfeitable rights.  A promise made by a person without an intention to be legally bound incurs only a moral obligation because the intention calls for, only for a social norm with a purpose of causing others to anticipate an assured performance.  A promise per se is not the basis of contractual obligation. Consent must be capable of moral and legal justification (Barnett, l986).

In contract determination, it is not the legal element that is the main consideration but the moral component as well.  However, it would be an error to resolve the moral or legal issues by mere analysis of the meaning of consent without knowing when consent is not forced or compelled, significant or adequate.  It is necessary to determine whether a person’s conduct is allowable.  Nonetheless, the criteria for a valid consent must necessarily be moral.  In contractual obligations, it is necessary to consider, though they are not co-extensive, the domain of moral responsibilities as well as the realm of legal responsibilities. Moral justification is necessary in legal enforcement (l986).

The law of contract ensures that those who enter into contractual agreements are bound by their promises. However, where either or both of the parties enter into a contract without valid consent, the contract is rendered defective or unenforceable.  Accordingly, remedies are provided to correct such defect either by court action or by acts of the parties themselves. Where contracts are enforceable, non performance of the obligation gives rise to action for damages.


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from http://www.cqc.state.ny.us/counsels_corner/cc50.htm                                                      U.S. Commercial vs. Halili, 93 Phil. 271

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