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Part 7 - Consent

Read Time: 10 minutes

Everything in the legal world rests on one foundation. Consent. Without it, nothing binds. With it, almost anything does. Understanding what consent actually is, what constitutes it, and what happens when it is assumed rather than given, is one of the most practically important things in this entire series.

What consent is

Fact

Consent is voluntary agreement — freely given, by a man or woman with the capacity to give it, with sufficient understanding of what is being agreed to. In contract law, a valid contract requires offer, acceptance, and consideration. Acceptance is consent. Without it, there is no contract. Without a contract, there is no obligation.

Black's Law Dictionary defines consent as a voluntary yielding to what another proposes or desires. The key word is voluntary. Consent obtained by deception, by coercion, by undue pressure, or from someone who did not understand what they were agreeing to, is not valid consent. It may look like consent. It may be documented as consent. But in law, it is not.

Observation

Consent is not merely a legal technicality. It is the mechanism through which a man or woman agrees to be governed — by an institution, a contract, a framework, a jurisdiction. Every obligation that legitimately applies to a man or woman exists because consent was given — expressly, or by assumption. Understanding this changes how you see every institution that claims authority over you, and every document placed in front of you to sign.

Assumed consent

Observation

Much of the legal world operates on assumed consent. The assumption that a man or woman who does not object has agreed. The assumption that continuing to use a service after its terms have changed constitutes acceptance. The assumption that compliance with an instruction is consent to the authority behind it. These assumptions may or may not be legally sound in any given case. But they are pervasive — and they are relied upon heavily by institutions, corporations, and governments.

Silence. In most legal contexts, silence is not consent. A man or woman who does not respond to an offer has not accepted it. But institutions frequently treat non-response as agreement — particularly in the context of updated terms, policy changes, and opt-out arrangements.

Inaction. Continuing to use a service after terms have changed is frequently cited as acceptance of those new terms. The man or woman did nothing. The corporation changed the rules. The inaction is treated as agreement.

Compliance. A man or woman who follows an instruction — puts on a mask, moves behind a line, fills in a form — has not necessarily consented to the authority behind the instruction. Compliance is frequently interpreted as consent. It feels the same. It looks the same. It is not the same.

Registration. When a birth is registered, the parents provide information to create a legal record. The man or woman whose birth is registered did not consent. They could not. They were a newborn. The registration happened to them, not with them. The legal entity created by that registration — the person — was created without the consent of the one it purports to represent.

Observation

How many arrangements are you currently in as a result of assumed consent rather than genuine agreement? How many things apply to the person named on your documents that you, as a living man or woman, never actually agreed to?

Informed consent

Fact

In medical law, the doctrine of informed consent is well established. A man or woman must be given sufficient information about a proposed treatment — its nature, its risks, its alternatives — to make a genuinely informed decision. The Montgomery v Lanarkshire Health Board case confirmed in the Supreme Court in 2015 that doctors must ensure men and women are aware of any material risks and of reasonable alternatives. Consent given without that information is not valid medical consent.

The same principle applies everywhere. A man or woman who signs a contract without reading it has consented in form. Whether they have consented in substance is a different question. The law generally holds them to the form. But the substance — what they actually understood, what they actually agreed to — is worth being honest about.

Observation

Agreement without understanding is not genuine agreement. It is the appearance of agreement — which the legal world treats as sufficient. The gap between the appearance and the substance is where most people lose ground they did not know they had.

Mandatory

Fact

Black's Law Dictionary defines mandatory as requiring the mandatee to first accept before the obligation arises. The mandatee — the one to whom the mandate is directed — must accept. Without acceptance, there is no obligation. The mandate does not bind of itself.

Observation

When a government, an institution, or an authority describes something as mandatory — the question worth asking is: mandatory for whom? Under what authority? And has the man or woman to whom it is directed accepted that authority? These are not questions designed to avoid reasonable obligations. They are questions about the nature of obligation itself.

The rules of a club bind its members. They do not bind a man or woman who has never joined the club. The question of whether, and when, a man or woman has joined — explicitly or by assumption — is the question consent is always trying to answer.

Consenting to the person

Observation

Every time a man or woman responds to correspondence addressed to the person — the name in capitals on the envelope, the legal entity created at registration — they are, in that moment, consenting to be that person. Not consciously. Not deliberately. But in the eyes of the system, the response is the acceptance. The engagement is the joinder. The reply is the consent.

This is one of the most significant and least understood forms of assumed consent in the legal world. When a letter arrives from an institution — a local authority, a court, a debt collector — addressed to the name on the documents, the assumed position is that the man or woman who opens it and responds is the person. They have accepted that identity. They have stepped into the role. The system has no reason to think otherwise — because nothing in the response suggested otherwise.

When a man or woman appears before a court and responds to the name called — when they stand when their name is called, acknowledge it as theirs, and proceed to engage as the defendant — they have consented to being the person. The legal fiction. The entity the proceedings are addressed to. The one who carries the financial responsibility for what follows.

Observation

None of this is stated. None of it is explained. No one in the courtroom announces that responding to the name is an act of consent to jurisdiction. But it is. And understanding that it is — understanding what is being agreed to in the moment of response — changes everything about how a man or woman might choose to engage.

"The name on the indictment is not you. It is an entity created by registration, maintained by administration, and addressed in capital letters on official documents. When you stand and answer to it — you have agreed that it is you, that the court has jurisdiction over you, and that you will engage as the defendant. That agreement is made in a moment, without a word being said about it. Knowing it is being made is the beginning of being able to make it consciously — or not."

Consent and the offer

Observation

Every interaction with the legal world begins with an offer. A letter is an offer. A summons is an offer. A fine is an offer. A contract is an offer. Each one is asking something of the man or woman it is addressed to — asking them to accept a framework, a jurisdiction, an obligation, a role. Nothing is imposed without consent. Everything requires acceptance — expressed, implied, or assumed.

This means that every interaction with the legal world is, at its root, a moment of consent. Not just the moments you think of as agreements — the contracts you sign, the documents you execute. Every letter you respond to. Every form you complete. Every instruction you follow. Every name you answer to. Each one is an offer. Each response is an acceptance. Each acceptance is consent.

Philosophy

Understanding this does not mean refusing everything. Most offers made by the legal world are reasonable — most obligations claimed against a man or woman are genuine, most institutions act in good faith, most correspondence deserves a response. The point is not refusal. It is consciousness. Knowing that what is being presented is an offer — that it requires acceptance to become binding — changes the nature of the encounter from something imposed to something chosen.

A man or woman who responds consciously — who knows what they are accepting and why, who has read what they are agreeing to, who understands the capacity in which they are engaging — is in a fundamentally different position from one who responds by default, out of habit, or out of fear. Both have consented. Only one of them knows that they have.

Rescission — withdrawing consent

Fact

Consent, in most contexts, can be withdrawn. The legal term for the withdrawal or cancellation of a contract or agreement is rescission — from the Latin rescindere, to cut back, to annul. To rescind is to undo. To treat the agreement as though it never existed. Where rescission is available, the parties are returned, as far as possible, to the position they were in before the agreement was made.

Rescission is available where a contract was entered into by mistake, by misrepresentation, by duress, or by undue influence. In each case the principle is the same — if the consent given was not genuinely free and informed, the agreement it created can be unwound. Not adjusted. Not renegotiated. Undone.

Consent that was validly given can also be withdrawn in many circumstances — in medical treatment at any time capacity exists, in consumer contracts within a cooling-off period, in data protection arrangements at any point. The right to withdraw is well established. What matters is doing it correctly.

Observation

The word rescission is worth knowing. It signals that the legal world has a mechanism for undoing what was done without full consent. That agreements are not always permanent. That a man or woman who entered into something without full understanding — or under conditions that were not what they appeared — may have a remedy. Knowing the word is the first step to knowing the remedy exists.

How to withdraw consent correctly

Fact

The legal world responds to written, formal, correctly presented communication. A verbal withdrawal of consent — a conversation, a phone call — is difficult to evidence and easy to dispute. Writing is what the legal world understands. Writing is what creates the record.

Be clear about what you are withdrawing. Name the agreement, the arrangement, or the consent specifically. State precisely what you are rescinding or withdrawing — the contract dated, the arrangement entered into, the consent given. Vague withdrawals create confusion and are easy to ignore.

State the grounds. If withdrawing on the basis of misrepresentation, duress, or lack of informed consent — say so. The grounds matter. They determine what remedy is available and how the receiving party is likely to respond.

Write it down. Every withdrawal of consent or notice of rescission should be in writing — dated, signed, and sent in a way that creates a record of receipt. Recorded post. Email with a read receipt. The record of communication is as important as the communication itself.

Keep copies. Everything sent. Everything received in response. Every exchange that follows. The paper trail is the evidence. Without it, it is one man or woman's word against another's.

Correspond in honour. A withdrawal of consent should be factual, calm, and written without hostility or ill-will. Aggressive or emotional correspondence is easier to dismiss. State the facts. State what you are doing. Ask what you need to ask. No more.

Seek appropriate guidance. Where significant obligations or significant sums are involved, the specifics of how to rescind or withdraw correctly are worth getting right. The principles here are educational. The specifics of any individual situation deserve individual attention.

Consent and estate planning

Philosophy

A Will is an act of consent — a man or woman declaring, in writing, what they agree should happen to what they own after their death. An LPA is an act of consent — a man or woman agreeing that another may act on their behalf in defined circumstances. A trust is an act of consent — a man or woman agreeing that assets should be held and managed by trustees for the benefit of others.

Every document in this Knowledge Base is, at its heart, a document of consent. A Will made under duress is not valid. An LPA signed without capacity is not valid. A trust deed agreed to without understanding is not a sound foundation for anything. The estate planning documents a man or woman puts in place are among the most significant acts of consent in a lifetime. They deserve to be made consciously — with full understanding, freely given, with genuine knowledge of what is being agreed to.

The documents you put in place for the people you love are your words — your consent, given formally, in writing, with legal weight. Are they a genuine expression of what you want? Or are they something you signed because someone told you to, without fully understanding what you were agreeing to? That is exactly what this Knowledge Base is here to change.

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