Implied Consent | Wex | US Law | LII / Legal Information Institute

Implied consent, compared to express consent (where consent is directly and clearly given with explicit words), is the agreement given by a person’s action (even just a gesture) or inaction, or can be inferred from certain circumstances by any reasonable person. The person who gives consent can withdraw the consent anytime and should have the capacity to make valid consent. The actor who gets the consent is bound by the consent and cannot exceed its scope.

In tort law, implied consent is a defense to an intentional tort. The plaintiff’s consent is implied when the plaintiff fails to object, or is silent in a situation in which a reasonable person would object to the defendant’s actions. Implied consent can arise from the actor’s reasonable interpretation of objective circumstances or from the consenter’s conduct. Consent can be implied by law, to save life, or protect property. For instance, under a medical emergency, when the person is unconscious and giving consent is impossible, but operating is necessary, consent is implied. Implied consent can also be inferred in custom; a person will be inferred to consent to an action when they participate in an activity in which certain action is necessary or customary. Especially when the activity with harmful or offensive contact can result in battery, the implied consent will be a defense of the actor (e.g., athletes have assumed the risk of violent contact within reasonable boundaries) unless the actor intentionally used force exceeding the consent or the consent was forced to submit.

In contract law, the form of a contract requires mutual consent. When the offeror gives the offer, the offeree may give consent by performing on the contract. Such consent is implied by the offeree’s performance.

When a person applies for a driving license or drives a car in a state that has an “implied consent” law (e.g., NY), they are considered to give implied consent to take a chemical test using blood, breath, or saliva to measure the blood alcohol content. If the person refuses to submit to testing, they will receive penalties, such as the suspension of their license.

[Last reviewed in April of 2022 by the Wex Definitions Team]

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