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🤕torts review

Consent as a Defense

Written by the Fiveable Content Team • Last updated September 2025
Written by the Fiveable Content Team • Last updated September 2025

Definition

Consent as a defense is a legal principle that allows an individual to avoid liability for certain intentional torts when the injured party has agreed to the conduct that resulted in harm. This concept is particularly relevant in cases involving battery, assault, and other intentional torts where the plaintiff's consent can negate the defendant's liability. Understanding this defense also involves recognizing how consent can be expressed or implied and the limits of its applicability based on public policy or lack of capacity.

5 Must Know Facts For Your Next Test

  1. Consent must be given voluntarily and can be revoked at any time, which means that even if consent was initially given, it does not protect a defendant from liability if the consent is later withdrawn.
  2. Consent can be expressed verbally or in writing, but it can also be implied through actions or circumstances that suggest agreement.
  3. Certain situations, like medical procedures, require informed consent where individuals must understand the risks before agreeing.
  4. Public policy may limit the scope of consent as a defense; for example, individuals cannot consent to criminal acts or conduct that could harm others.
  5. The capacity to consent is crucial; minors and individuals who lack mental capacity cannot provide valid consent, making any agreement potentially void.

Review Questions

  • What is the difference between expressed and implied consent in the context of tort law?
    • Expressed consent is explicitly communicated by a person, usually through words or writing, indicating their agreement to certain actions. Implied consent, on the other hand, is inferred from a person's behavior or the context of a situation. In tort law, both forms of consent can serve as defenses against liability, but they differ in how they are established and understood in legal proceedings.
  • Discuss how public policy influences the limitations placed on consent as a defense in tort cases.
    • Public policy plays a significant role in determining the validity of consent as a defense. For instance, courts often invalidate consent when it pertains to activities that are illegal or harmful to society, such as consenting to physical harm during a fight. This means that even if both parties agree to an action, if it violates public policy or involves significant risk to others, consent may not serve as a valid defense against liability.
  • Evaluate the role of capacity in determining whether consent is valid in tort cases and its implications for defendants.
    • Capacity is critical when assessing whether an individual's consent is valid in tort cases. If a person lacks the legal ability to give informed consent due to age, mental incapacity, or intoxication, then any alleged agreement may be deemed invalid. This poses significant implications for defendants because if they acted under the assumption that they had obtained consent from someone lacking capacity, they may still face liability for their actions despite their belief that they were acting within legal bounds.