Is Consent Overrated?

SHERRY F. COLB

Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.

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Good v. Harry's Dairy

Docket: 46350

Opinion Date: March 9, 2020

Judge: Brody

Areas of Law: Agriculture Law, Business Law, Civil Procedure, Contracts

Jeff Good and Harry’s Dairy entered into a contract providing that Harry’s Dairy would purchase 3,000 tons of Good’s hay. Harry’s Dairy paid for and hauled approximately 1,000 tons of hay over a period of approximately eight weeks, but did not always pay for the hay before hauling it and at one point went several weeks without hauling hay. After Harry’s Dairy went a month without hauling additional hay, Good demanded that Harry’s Dairy begin paying for and hauling the remaining hay. Harry’s Dairy responded that it had encountered mold in some of the hay, but would be willing to pay for and haul non-moldy hay at the contract price. Good then sold the remaining hay for a substantially lower price than he would have received under the contract, and filed a complaint against Harry’s Dairy alleging breach of contract. Harry’s Dairy counterclaimed for violation of implied and express warranties and breach of contract. The district court granted summary judgment in favor of Good on all claims, and a jury ultimately awarded Good $144,000 in damages. Harry’s Dairy appealed, arguing that there were several genuine issues of material fact precluding summary judgment, that the jury verdict was not supported by substantial and competent evidence, and that the district court erred in awarding attorney fees, costs, and prejudgment interest to Good. The Idaho Supreme Court determined the district court erred only in its decision with respect to Good’s breach of contract claim and Harry’s Dairy’s breach of the implied warranty of merchantability claims. Judgment was vacated and the matter remanded for further proceedings.