“Irrevocably Consents”

[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.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.