Assent

Case Examples

• Written Contracts: A party’s signature on a contract is generally considered assent to the contract. See McClairne v. Titlemax of Texas, Inc., No. 4:22-CV-03334, 2023 WL 3739085, at *3 (S.D. Tex. May 30, 2023), appeal dismissed, No. 23-20297, 2023 WL 9020970 (5th Cir. Sept. 19, 2023). In McClairne, a man sued a title company, claiming that there were major billing inconsistencies between the contract he signed and what he was actually being charged. The title company filed a response stating that McClairne was bound to arbitration under the contract. The court agreed, stating that both parties had assented to the contract, including the arbitration clause, by signing the contract.
• However, a written signature is not the only way a court can find that a party assented to an agreement. In Fenix Enters., Inc. v. M & M Mortg. Corp., 624 F. Supp. 2d 834, 842 (S.D. Ohio 2009), the Court found that the parties had assented to an oral contract because the parties failed to timely object to the $300,000 not being properly placed in escrow, but rather in a specific party’s account.
• Implied Consent: Implied consent is determined partly by a party’s conduct, particularly if the party attempted to benefit from the contract without being bound by it. In U.S. Sec. Assocs., Inc. v. Wade, No. 05-73931, 2006 WL 8432834, at *1 (E.D. Mich. Jan. 18, 2006), the Court allowed the Plaintiff to file a second amended complaint to include the theory of implied consent against Defendant Wade, as he took advantage of the employment contract between the parties, including a paycheck, while trying to get out of his work obligations.

Questions to consider when evaluating assent:

• Did the parties sign the contract?
• Did the parties benefit from the contract?
• Did a party object to the contract in a timely manner?
• Does the parties’ conduct show that they meant to be bound by the contract?