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DISCUSSION OF PRELIMINARY DRAFT 52 1 (1932)

handle is hein.ali/relwtrts0068 and id is 1 raw text is: THE AMERICAN LAW INSTITUTE
Discussion of Torts No. 52
Edwa±fd S. Thurston, Reporter.__
Section 1012.
MR. THURSTON: One of my Advisers, Judge Branch, suggested to me only a few
days ago that he would like very much that I place before you an alternative
proposal for Section 1012 which is the key sbction on this problem of consent.
He does not like the last part of Section 1012 and suggests that beginning
with the words unless it is obtained in the middle of the third line it
read llawfully obtained, unless he lacked capacity to consent. That would
require a modification of the comment to explain that lawfully obtained
excludes the situations which are here stated, namely, when obtained by
duress, fraud, mistake as to the authority of a public officer. His proposal
makes the statement much simpler. On the other hand) I have some doubts
personally as to whether lawfully obtained really says anything or means
anything. There is one incidental advantage of his suggestion, however,
aaely, that it avoids the danger of sewing the thing up too tight. So
we have said that consent is effective to give a privilege to enter land
except in three or four specific situations - duress, fraud, certain type
of mistake and then where one who purports to consent has no capacity
to do so where he is insane. There might conceivably be other situations
where this privilege would be involved. We have no reason to believe there is
any other situation, but if we adopt Judge Branch's suggestion, we do leave
p                                                              '72b

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