Non est volens knowing is not volunteering the

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non est volens (“knowing is not volunteering”). The presence of free consent is necessary. It is clear that consent may be implied from conduct as 3 [last accessed on: 5/10/2013]
Volenti non fit injuria: A CRITICAL ANALYSIS well as expressed in words so that the defendant escapes liability if he was justified in inferring that the claimant consented even though, secretly, he did not. 4 ESSENTIAL ELEMENTS OF THE DOCTRINE For the defence of volenti non fit injuria to be applicable, the following essentials must be present: There should be an agreement. The agreement should have been entered into voluntarily. The agreement should have been made in full knowledge of the nature and extent of the risk involved. 1. There should be an agreement. An agreement should have been entered into in the first place for the defence to be applicable. The agreement may be express or implied. An example of an express agreement would be where there exists a contractual term or notice. However, this would be subject to the controls of s.2 of the Unfair Contract Terms Act 1977. An implied agreement may exist where the claimant's action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks. 5 2. The agreement should have been entered into voluntarily. For the defence to be available, it is necessary to show that the plaintiff consented to the act done by the defendant. This consent should be free and should not be the one obtained by fraud or under compulsion. The agreement must have been voluntary and freely entered into. 3. The agreement should have been made in full knowledge of the nature and extent of the risk involved in the act. The consent must have been given while knowing the extent of risk involved. For the defence of volenti non fit injuria to be applicable, the one claiming it (defendant) 4 W V H Rogers, “Winfield and Jolowicz on Tort”, Sweet & Maxwell Limited, London, 17 th edn., 2006, Pg. No. 1059. 5 [last accessed on: 05/10/2013]
Volenti non fit injuria: A CRITICAL ANALYSIS must prove that the plaintiff had the full knowledge of the nature and extent of the risk involved. But mere knowledge does not imply assent. Having complete knowledge of the risk, the plaintiff should also have had agreed to suffer the harm. CONSENT : MEANING AND TYPES The very essence of the defence of volenti non fit injuria lies in the presence of consent. Thus, consent is the most important requirement for this particular doctrine to be available as a defence in torts. In fact, the doctrine of volenti non fit injuria is itself referred to as the defence of ‘Consent’ many a times. When you invite a person to your house, you cannot in any case sue him for trespass. It is for the simple reason that you yourself had consented for it. You cannot claim for the enforcement of a right which you had voluntarily waived or abandoned. Also, the act done by the defendant

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