In New Hampshire law, the legal definition of consent in the context of a social compact or contract law is not explicitly defined in a single statute but can be understood through the principles governing contract law and the broader concept of a social compact as derived from legal and philosophical traditions. Below, I address the definition of consent in both contexts based on available legal principles and New Hampshire-specific sources. Consent in Contract Law under New Hampshire Law In contract law, consent is a fundamental element required for the formation of a valid, enforceable contract. Consent refers to the voluntary and knowing agreement of the parties to the terms of the contract. According to general contract law principles, as reflected in New Hampshire law, consent must be:
Freely Given: Consent must be voluntary, without coercion, duress, undue influence, fraud, or misrepresentation. If a party is pressured or deceived into agreeing, the consent is not considered genuine, and the contract may be void or voidable. Informed: The consenting party must have a clear understanding of the contract’s terms, including the rights and obligations involved. This requires full disclosure of relevant facts. Mutual: All parties must agree to the same terms, often referred to as a “meeting of the minds.” This ensures that both parties have a shared understanding of the contract’s purpose and terms. Expressed or Implied: Consent can be explicit (e.g., through a written or verbal agreement) or implied (e.g., inferred from actions or conduct, such as using a service with posted terms).
New Hampshire case law, such as Wilcox Industries Corp. v. Hansen (2012), emphasizes that for a contract to be valid, there must be a valid, binding agreement where the parties’ consent is demonstrated through mutual assent to the contract’s terms. A breach of contract claim in New Hampshire requires showing that (1) a valid, binding contract existed, and (2) the defendant breached its terms. Mistakes can affect the validity of consent. For example:
A unilateral mistake (made by one party) generally does not void a contract unless the other party knew or should have known of the mistake or it was caused by misrepresentation. A mutual mistake about a key factual matter (e.g., both parties believing a contract can be performed when it is impossible) may render the contract void.
For instance, if two parties in New Hampshire enter a contract to sell a property assuming it can be used for commercial purposes, but it is zoned for residential use, the contract may still be binding unless both parties were mistaken about a fundamental fact. Consent in the Context of a Social Compact The concept of a “social compact” (or social contract) is more philosophical and less explicitly defined in New Hampshire statutory law. It refers to the theoretical agreement among individuals to form a society and submit to governance in exchange for protection of their rights. Social contract theory, as articulated by philosophers like Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, underpins much of modern political and legal thought, including in the United States. In the context of New Hampshire, the social compact can be understood through the lens of the New Hampshire Constitution, particularly Part I, Article 1, which states: “All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the common good.” This implies that the legitimacy of government in New Hampshire is based on the consent of the governed, a core principle of social contract theory.
Nature of Consent in a Social Compact: Consent in this context can be explicit (e.g., through voting or participation in the formation of government) or tacit (e.g., by living within a society and benefiting from its protections without actively rebelling). Tacit vs. Explicit Consent: Philosophers like Locke emphasized that individuals consent to governance by choosing to remain in a society and enjoy its benefits, such as protection of life, liberty, and property. However, modern theorists like Philip Pettit argue that the legitimacy of a social compact may rest on the absence of effective rebellion rather than explicit consent, as explicit consent can be impractical or manufactured. Limits of Consent: In New Hampshire, as in Lockean theory, the obligation to obey the government is conditional on the government protecting natural rights (e.g., life, liberty, property). If the government fails to uphold these rights, citizens may have a right to resist or dissolve the compact.
While New Hampshire law does not explicitly codify a definition of consent in the social compact, the state’s constitutional framework aligns with the idea that governmental authority derives from the people’s consent, whether expressed through democratic processes (e.g., elections) or implied by participation in society. Key Considerations in New Hampshire
Capacity to Consent: In both contract law and the social compact, the person giving consent must have the legal capacity to do so. This means they must be of sound mind and, in some cases, of a certain age. For example, minors generally lack the capacity to enter binding contracts unless emancipated or in specific circumstances (e.g., marriage). Statutory Context: New Hampshire’s laws on consent are more explicitly defined in other areas, such as sexual assault or wiretapping, which may provide analogous principles. For instance, New Hampshire’s wiretapping statute (RSA 570-A) requires all parties to a conversation to consent to its recording, emphasizing the need for voluntary and knowing agreement. Compact Theory in U.S. Context: While not directly tied to New Hampshire law, it’s worth noting that the “compact theory” of the U.S. Constitution (which posits that the federal government is a creation of the states’ consent) has been rejected by federal courts in favor of the contract theory, which emphasizes the consent of the people. This distinction may influence how New Hampshire courts interpret the social compact in relation to federal authority.
Summary
In Contract Law: Consent in New Hampshire is the voluntary, informed, and mutual agreement to the terms of a contract, free from coercion, fraud, or mistake. It can be express or implied, and its validity depends on the parties’ capacity and understanding. In a Social Compact: Consent is the theoretical basis for governmental legitimacy, as reflected in the New Hampshire Constitution. It can be explicit (e.g., through voting) or tacit (e.g., by living under and benefiting from the state’s laws), but it is conditional on the government protecting individual rights Part I, art. 3 and art. 12.
