This word is applied to designate one species of contract known in the civil laws; these contracts derive their name from the consent of the parties which is required in their formation, as they cannot exist without such consent.
The contract of sale among civilians is an example of a consensual contract, because the moment there is an agreement between the seller and the buyer as to the thing and the price, the vendor and the purchaser have reciprocal actions. On the contrary, on a loan there is no action by the lender or borrower, although there may have been consent, until the thing is delivered or the money counted. This is a real contract in the sense of the civil law.
An agreement to something proposed, and differs from assent. Consent supposes: 1. A physical power to act; 2. A moral power of acting; 3. A serious, determined, and free use of these powers.
Consent is either express or implied. Express, when it is given viva voce or in writing; implied, when it is manifested by signs, actions or facts, or by inaction or silence which raise a presumption that the consent has been given.
- 1. 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 unless such consent was obtained by deceit or fraud.
- 2. Such a condition does not apply to a second marriage.
- 3. If the consent has been substantially given, though not modo et forma, the legatee will be held duly entitled to the legacy.
- 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.
- 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.
- 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. And courts of law, unless restrained by technical formalities, act upon the principles of justice, for example, when a man permitted, without objection, the sale of his goods under an execution against another person.
The consent which is implied in every agreement is excluded; 1. By error in the essentials of the contract as, if Paul buys the horse of Peter, and promises to pay one hundred dollars for it, but the horse at the time of the sale, unknown to either party, was dead. This decision is founded on the rule that he who consents through error does not consent at all; non consentiunt qui errant; 2. By duress of the party making the agreement. 3. When it is obtained by fraud; 4. When 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.