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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