[Updated 2 Jan. 2022: For a court that disagrees with Reyes as it applies to the TCPA, see Ammons v. Ally Financial, Inc., 326 F. Supp. 3d 578, 595 (M.D. Tenn. 2018).]
Thanks to this post by Eric Troutman on Dorsey’s Consumer Financial Services Update, I learned about Reyes v. Lincoln Automotive Financial Services, No. 16-2104-CV, 2017 WL 2675363 (2d Cir. June 22, 2017), in which the court held that someone who by contract had consented to being called about his car lease could not unilaterally revoke that consent.
The court put the issue in a broader context:
Reyes’s consent to be contacted by telephone, however, was not provided gratuitously; it was included as an express provision of a contract to lease an automobile from Lincoln. Under such circumstances, “consent,” as that term is used in the TCPA, is not revocable. The common law is clear that consent to another’s actions can “become irrevocable” when it is provided in a legally binding agreement, RESTATEMENT (SECOND) OF TORTS § 892A(5) (AM. LAW INST. 1979), in which case any “attempted termination is not effective,” id. at cmt. i. See also 13–67 CORBIN ON CONTRACTS § 67.1 (2017) (noting that “a party who is under a legal duty [to perform a contractual obligation] by virtue of its assent” has the burden to prove that that duty was discharged by some subsequent event, such as recission by “mutual agreement” or by the exercise of a contractual right to terminate). This rule derives from the requirement that every provision of a contract—including any proposed modification—receive the “mutual assent” of every contracting party in order to have legal effect.
So consider dropping from your contract vocabulary the phrase irrevocably consents, which occurs in 3,324 contracts filed on the SEC’s EDGAR system in the past year. Sure, you could keep it, just in case someone wants to pick a fight, but I suggest that the issue is sufficiently clear cut that keeping irrevocably is more annoying than helpful, just as it’s more annoying than helpful to refer to irrevocable obligations. (See this 2016 post.)
If you were to add just-in-case verbiage everywhere you could, your contracts would double in length. If you can’t tolerate sensible risk, don’t do contracts.
That applies to consent given in the contract itself but not to consent that may or may not be given in the future, e.g., some act that is prohibited absent the written consent of the other party. (Yes, I know that a prohibition can always be waived whether or not that language is included, but provisions like that are nonetheless common, and I believe useful, because they indicate how the parties intend to deal with each other in the future by expressing a willingness to at least consider waiving the prohibition.) I believe that the usual view is that consent given without consideration and without an obligation to do so is revocable unless the other party has acted in reliance on the consent. In that case, if the idea is that the consent, once given, will not be revoked, the contract should say so.
Could you give me an example of how this would play out?
A common fact pattern is a consent to assignment of a contract (e.g., by a customer) in connection with a sale of assets. If the assignment were obtained well in advance of the closing, seller and buyer would want to be able to rely on it.
In practice, though, we don’t write those as “irrevocable” so as not to scare off the customers. I also think that requiring a written consent lends the formality (a la Lon Fuller) to cause customers to elect to withhold rather than consider consenting and then retracting.
Sorry to go back to such an ancient post. Rick Colosimo provided one example. LLC operating agreements are another source of examples. They often have provisions scattered throughout that require consent of the members for either the company or an individual member to take some particular action. For example, “Interest may not be transferred except with the unanimous written consent of the members.” Once the interest is actually transferred (i.e., the transferor has acted in reliance on the consent), the consent is irrevocable (or maybe, in this case, consent is no longer relevant because the action that required consent has already been completed), but until that time consent can be revoked unless there’s a provision that says it can’t be. At least I think that’s the way it works. That may be okay, or it may not.
(It just occurred to me that the example I gave is also a relatively rare example of a provision for which I think passive voice works best.)
Is f
Is the meaning similarly redundant when used in a grant of a copyright licenses? Youll often see, e.g., “licensor hereby grants licenses a non-sublicensable, irrevocable license to use the content for X purposes…”
You might find helpful this article: https://www.adamsdrafting.com/wp-content/uploads/2016/02/Granting-Language-in-Patent-License-Agreements-Adams-Final.pdf. Search for irrevocable.