Express consent

Definition

Express consent refers to a clear and unequivocal agreement given by a person, indicating their willingness to engage in a specific act or activity. This type of consent is typically communicated verbally or in writing and is crucial in legal contexts, particularly in determining liability for intentional torts. Understanding express consent helps clarify the boundaries of personal autonomy and the extent to which individuals may permit certain actions against their interests.

5 Must Know Facts For Your Next Test

1. Express consent must be given voluntarily and without coercion, ensuring that the person truly understands what they are agreeing to.
2. In many cases, express consent can serve as a defense against claims of intentional torts, like assault or battery, as it demonstrates that the individual agreed to the action.
3. Express consent can be documented through various means, including written contracts, verbal agreements, or even digital affirmations.
4. The validity of express consent may be challenged if the consenting party was misled or lacked the capacity to understand the implications of their agreement.
5. Different jurisdictions may have specific requirements for what constitutes valid express consent in different contexts, such as medical treatment or participation in risky activities.

Review Questions

• How does express consent differ from implied consent in terms of its application in tort law?
  • Express consent is a direct and clear agreement communicated by an individual, while implied consent is inferred from a person's behavior or circumstances. In tort law, express consent serves as a definitive defense against claims of intentional torts because it explicitly shows that the individual authorized the action. On the other hand, implied consent may not always be as clear-cut and can lead to disputes over whether the consent was truly given.
• Discuss the significance of express consent in relation to informed consent within medical settings.
  • Express consent plays a crucial role in informed consent, particularly in medical contexts where patients must fully understand their treatment options. While express consent refers to the clear agreement of a patient to undergo a procedure, informed consent ensures that this agreement is based on comprehensive knowledge of potential risks and benefits. Therefore, express consent cannot be valid without adequate information being provided to the patient beforehand.
• Evaluate how express consent influences legal outcomes in cases of assault and battery, including potential defenses available to defendants.
  • Express consent significantly influences legal outcomes in assault and battery cases by providing a strong defense for defendants. If an individual can demonstrate that the plaintiff expressly agreed to the conduct in question—such as participating in a contact sport—this can negate claims of liability. This relationship highlights how understanding and obtaining express consent not only protects individuals from tort claims but also establishes clear boundaries regarding personal autonomy and acceptable behavior in various interactions.

Related terms

Implied Consent:

Implied consent is a form of agreement inferred from a person's actions, conduct, or circumstances, rather than through explicit verbal or written communication.

Informed Consent: Informed consent occurs when a person fully understands the risks and benefits associated with a decision before agreeing to it, often used in medical settings.

Assault:

Assault is an intentional tort that involves causing apprehension of harmful or offensive contact in another person, which express consent can negate.