Key Takeaways

  • Consensual relates to agreements or contracts formed by mutual consent; it also distinguishes voluntary actions from coerced or unlawful ones.
  • Consent means agreement, which can be express (spoken or written) or implied (shown through actions, silence, or circumstances).
  • The spelling “consensual” is correct in legal and formal contexts, while “consentual” is a common misspelling with no recognized dictionary authority.
  • Legal disputes often turn on whether consent was valid, especially in areas such as contracts, property, or criminal law.
  • Consent may be invalidated by fraud, duress, incapacity, or error, making the contract or act legally void.

Consensual

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.

Consentual vs Consensual Spelling

In legal writing, precision is essential, and the distinction between consentual vs consensual demonstrates why. The correct spelling is consensual, derived from the Latin consensus (agreement). This form appears in legal dictionaries, statutes, and judicial opinions.

The alternative spelling consentual has gained visibility online but is widely considered a misspelling, not an accepted variant. For example, courts and legal treatises consistently use “consensual contract” rather than “consentual contract.” Using the incorrect spelling in legal pleadings, agreements, or academic work can undermine credibility and cause confusion.

That said, the persistence of “consentual” in informal discussions reflects how closely it resembles the root word consent. While you may encounter “consentual” in casual writing, legal professionals should always use consensual in contracts, briefs, and scholarly articles.

Consent

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.

Issues Related to Implied Consent

  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.

Situations Where Implied Consent Becomes Null

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.

Legal Significance of Consent

Consent is not only a philosophical concept but also a legal threshold that determines the validity of many actions. For example:

  • Contracts: A contract without genuine consent is voidable. If a party consents under fraud or coercion, courts may invalidate the agreement.
  • Property: Implied consent, such as allowing the use of land without objection, can create legal rights or estoppel against the true owner.
  • Criminal Law: Consent often distinguishes lawful acts from unlawful ones. For instance, consensual sexual activity is legal, while the absence of consent transforms the act into a crime.

Courts frequently examine whether consent was freely given, informed, and competent. If any of these elements are missing, what appears to be consent may not hold up legally.

Consent in Different Legal Contexts

The concept of consent operates differently depending on the area of law:

  • Civil Law (Contracts): Consent creates binding agreements when both parties agree on essential terms.
  • Tort Law: Consent may serve as a defense (e.g., in cases of medical treatment, contact sports, or trespass).
  • Family Law: Issues such as marriage and adoption require express legal consent, often formalized through statutory procedures.
  • Criminal Law: The absence of consent is central to crimes like assault, theft, and sexual offenses. Courts scrutinize whether consent was voluntary, informed, and not obtained through manipulation or intimidation.

By analyzing context, courts determine whether consent protects an act from liability or voids it altogether.

Frequently Asked Questions

1. Is “consentual” ever correct in legal writing?

No. Consentual is considered a misspelling. The correct term is consensual, which is recognized in legal and formal contexts.

2. What does a “consensual contract” mean?

It refers to a contract formed solely by the mutual consent of the parties, without requiring formal delivery of goods or money.

3. Can consent be implied in law?

Yes. Consent may be implied from actions, silence, or established conduct, though it must still meet legal standards of validity.

4. When is consent invalid?

Consent is invalid when obtained through fraud, duress, mistake, or when given by someone lacking legal capacity.

5. Why is consent important in criminal law?

Consent often determines whether conduct is lawful or criminal. For example, consensual sexual activity is lawful, but without consent, it may constitute sexual assault.

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