Reality of Consent

Reality of Consent - Reality of Consent If an agreement lacks real consent the party who did not really consent may avoid the contract or in the

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Reality of Consent If an agreement lacks real consent, the party who did not really consent may avoid the contract or, in the alternative, sue for damages. A contract lacking real consent is considered voidable (see Chapter 9 lecture notes). The choice to avoid this type of contract is with the party who did not really consent! The consenting party is left with no choice. The legal right to avoid this type of contract lies with the party who can prove that she did not really consent to the agreement. Up to this point in the semester we have established that contract intent is based on the behavior of the parties and other surrounding circumstances (objective theory of contract law) and that the subjective beliefs and feelings of the parties is actually immaterial with regard to the process of offer and acceptance. In this chapter however, the state of mind of the party who is alleging no real consent is crucial to the outcome of the dispute. So it is here, for the first time, that we are going to concern ourselves with the subjective aspect (what the person was actually thinking and believed to be the facts). An example would be : Seller and Buyer enter into an agreement for the sale and purchase of a car owned by Seller. Seller told Buyer that the car had 25,000 miles when in fact it had 45,0000. The seller also turned back the odometer to reflect 25,000 miles. The seller was consciously lying to Buyer when he made this statement. Assume that Buyer eventually learns the truth about what happened. Did the Buyer REALLY CONSENT to this contract? No! Buyer bargained for a car that he believed to have only 25,000 miles but that actually had 45,000. So. . . the buyer bargained for one thing and got something different. The contract lacked real consent and the buyer has some choices available to him. He can sue to rescind the contract or he can sue for damages. The seller, on the other hand, is without any choice. He is at the whim of the buyer. Example # 2: Seller and Buyer enter into an agreement for the sale and purchase of Seller's home. During negotiations Seller informed Buyer that the home was 4500 square feet when in fact it was less than 4000 square feet. The seller actually believed the information to be true because she was told this when she bought the home from the person who sold it to her. She never attempted to confirm this information. Assume that Buyer eventually learns (months after moving in) that the home is less than 4000 sq. feet. Did the buyer really consent to this agreement? The answer is again, no! The buyer bargained for one thing and received another. The buyer's state of mind was that he was getting a home that was 4500 square feet when in fact it was less than 4000 square feet. The buyer believed he was getting a certain thing but got something else The difference between examples one and two, insofar as how the misinformation was passed from one party to the other, is that in example one the seller acted with the purpose of deceiving the buyer and in example two the seller had no intent to deceive the buyer but was negligent in dealing with the buyer. The first
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example is one of fraud and the second example is one of innocent misrepresentation. The curious fact is that in each of the two examples the buyer really didn't consent and
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This note was uploaded on 04/03/2012 for the course BUS LAW 320 taught by Professor Soos during the Spring '10 term at Rutgers.

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Reality of Consent - Reality of Consent If an agreement lacks real consent the party who did not really consent may avoid the contract or in the

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