Legal question-The idea of implied Consent

[Penn]

Lawyers only please.

In class legal discussion to fulfill term paper requirement.

Contract is a lease. X dollars per month, with a deposit of x dollars equaling 1 months rent.

The Issue:
Leasee does not pay rent one month, uses the lease deposit instead telling the landlord to apply the deposit to the rent.

The landlord does not object to the above, and for the next 7 months accepts the rent in split payments of ½ on the 1st and ½ on the 15th of each month. Rather than the agree to terms of rent in full on the first of each month.

My Position:

The leasee is correct and it is arguable that the non verbal agreement is accepted to both the new terms for rent payment, and the non redeposit of security into the escrow account, that lease amendment is/be considered an implied agreement, binding the landlord to the new terms, while keeping the rest of the agreement in force?

Thanking you in advance for your time and consideration.

[Pete]

Is the owner getting the late fee for the hassle of splitting the rent payment? Or did he drop that from the signed contract?

[craigepo]

Here is a quickie answer under Missouri law.

I presume the lease contract is written. Generally, to modify a written contract, the modification must be in writing. Also, there must be new promises for a proper modification. So, the terms of the lease should control. So...

There is a way to show evidence that the terms of a contract have changed known as "course of dealing". This allows evidence to come in that clarifies a contractual ambiguity, the evidence showing that the parties performed the contract in a way that was inconsistent with the language of the contract. However, this only works when the contract deals with a sale of goods, and is generally frowned-upon when the contract is clear.

Answer: dude renting property has breached the terms of the lease. So, he could be evicted. However, as there is no arrearage in the rent payments, landlord has not suffered any monetary damage. Few landlords are going to evict a tenant when landlord is getting paid, unless there is something else going on (i.e. landlord could rent to next dude for money).

ETA: There might also be a distinction on whether the lease is commercial or residential, depending upon your state. Many states allow a residential renter to "cure" by showing up on the day of court with all of the back rent in hand.

A little trivia: The term "implied consent" that you used in the title is somewhat misplaced. "Implied consent" generally applies to search-and-seizure law, and is often used by states in conjunction with DWI stops. The states' "implied consent" laws hold that by operating a motor vehicle on their public roadways, you have impliedly consented to giving a breath sample for a breathalyzer test.

[tonyz]

The specific terms of the lease can be crucial to a helpful answer. Generally, as you know, the terms of lease govern the terms of the L / T relationship.

Does the lease state that all modifications to the duly executed lease (assuming that is true) are to be in a writing signed by both parties?

Has the landlord waived this written modification requirement (if it exists)? How? I know you might suggest by accepting the money but that may be merely a legal argument and not a valid legal conclusion - more info will develop this analysis.

Does the lease address partial payments or late payments of rent?

Does the lease address deposits? There may be some state law nuances regarding deposits.

Is the concept of waiver or partial payments discussed or defined anywhere in the lease? This could prove important.

Since this is hypothetical for class - that should get you started looking at the terms of the lease. Once you get warmed up...

How is breach defined? How is rent defined?

Having been on all sides of these types of things...the business man side says the landlord is getting his money - albeit a little late. The deposit may be another issue.

Good practice suggests that all modifications be in writing signed by both parties - but you're sick of hearing that.

[bluebb]

Why even pay..it takes a good six months to get evicted

Blue

[Penn]

First, thank you all for responding.

The issue is simply that I must present and defend the position I chose, “non verbal implied consent”.

This paper is not for a law course; it is an ethics seminar and the subject is a NJ Case DUI case which involved a 1st language speaker who did not understand the nature of the stop. Not addressed in his native language, the case was overturned.

I choose my position based on the principle that implied consent is not limited to the states right to exam a driver “Under the implied consent law, any person who operates a motor vehicle in the state is deemed to have consented to a DUI chemical test. The implied consent law serves as a means for gathering evidence against a DUI defendant. Although the implied consent law is legal, it fails to mask the law’s foundational fallacy that a driver's presence on a state's highway indicates an agreement to submit to a chemical test for drugs or alcohol upon the lawful request of a police officer”.

What I hope to do is use the following to argue that if implied consent has to prove beyond a reasonable doubt as in NJ Case law:

“a DWI violation is treated, by the Court, as a quasi-criminal prosecution, every
element of a DWI offense must meet the evidentiary standard of “beyond a reasonable doubt.” Romano v. Kimmelman, 96 N.J. 66, 89-90 (1984). In contrast, since a DWI refusal violation is not treated as a quasi-criminal prosecution, it does not have to meet the higher evidentiary standard for criminal conduct, beyond a reasonable doubt. The Legislature has determined that proof of a violation of the DWI refusal statute is satisfied when the State presents evidence meeting the preponderance of the evidence standard of proof. State v. Leavitt, 107 N.J. 534
(1987); State v. Widmaier, 157 N.J. 475 (1999)”.

My contention is the implied consent is evident by the landlord’s acceptance of bi-monthly payments in full, indicates “beyond reasonable doubt” an acceptance of a non verbal change in the agreement between the landlord and the tenant, and is no different than the implied consent agreement between the State right to test the driver, and the drivers non verbal consent to be tested.

Further, by the landlord inaction; not issuing a letter of demand for conformity to the lease’s existing terms indicates acceptance of the non verbal agreement. Sustaining the tenant’s position that landlord, through his interaction, consents to the new “non verbal” terms “beyond reasonable doubt”.

[WRMETTLER]

Penn,
Here is a response that I thought was posted earlier, but was not.

"You want to modify the terms of the agreement based on your action and the landlord's acceptance of your conduct without any sort of formal understanding between the landlord & Tenant.

The Arizona answer:
The question is whether the lease is subject to the statute of frauds. If so, the answer is no - never.
If the lease is not controlled by the statute of frauds, then you can admit evidence that shows a subsequent contract that modifies an existing contract, the lease. under your fact situation, evidence would be your conduct and the landlord's acceptance of your conduct.
Specifically, the landlord has accepted your conduct i.e. the split rent. then the fact question is whether his acceptance of the split payments modified the contract by "ratification". A person can change/accept the terms of a contract by his acts thereby affirming the terms of the new contract. It is difficult to prove, but the court should give you the opportunity to try.

If you came to me with that case, I'd want my entire fee up front. "

With your recent supplement, I think you are confusing two entirely different issues. Implied consent in a DUI case is based on a statutory scheme to punish DUIs for refusal to be tested for a BA level. You refusal to be tested causes 2 things to happen. First, you will still be charged with DUI based on the officer's opinions, etc and any court ordered testing. That is a criminal burden of proof, beyond a reasonable doubt.
I don't know if they charge you with a criminal violation for refusing to be tested. In Arizona I could not find any such statute.
Second, the state department of transportation will lift your license for a year or so. That statutory alternative to accepting a test is designed to keep you off the road for 12 months. You have the right to contest that, both at the administrative level and appeal into superior court. I suppose you can challenge that DOT ruling based on a civil burden of proof, preponderance of the evidence.

Arizona has a case identical to your NJ case. The court indicated that a clear consent must be given, and if unavailable due to intoxication or a language barrier, there is no clear consent. "The Legislature recognized this reality, and prescribed a straightforward solution. By providing that "[a] failure to expressly agree to the test . . . is deemed a refusal," the Legislature made clear that the failure to refuse is not agreement — rather, the failure to agree is refusal" If there is a failure to agree to the test, the police do not receive a clear consent, and the police must secure a search warrant if they want the blood. The appeals court reversed the defendant's convictions for DUI and returned the case to the trial court for an implied consent hearing to determine if the case needs to be referred to the ADOT or if consent was given. The standard of the reversal was not based on any burden of proof, but merely whether the trial court abused its discretion.

But, a contract modification has no relationship to your issue, i.e a implied consent situation resulting from a DUI stop.

[lksteve]

but I believe a more appropriate term is acquiescence. Which reminds me...I think my ex wound up with my copy of Black's Law Dictionary...damn...

[Richard]

I've spent a lot of time and $$ internationally researching that 'implied consent' issue in many a watering hole...but I can't recall too much of what I found out and don't think I can legally post the results of what I do remember in here.

Richard

[Penn]

BRB, I have to further edit my statement.

[PedOncoDoc]

Originally Posted by craigepo

A little trivia: The term "implied consent" that you used in the title is somewhat misplaced. "Implied consent" generally applies to search-and-seizure law, and is often used by states in conjunction with DWI stops. The states' "implied consent" laws hold that by operating a motor vehicle on their public roadways, you have impliedly consented to giving a breath sample for a breathalyzer test.

Perhaps this should go to another thread, but here's my question in response to the above:

Why doesn't the 5th amendment apply to refusing breathalyzer testing? From my understanding, breathalzyer refusal automatically gets you a DUI/DWI conviction.

[WRMETTLER]

Penn, you wrote:
"The implied consent law serves as a means for gathering evidence against a DUI defendant. Although the implied consent law is legal, it fails to mask the law’s foundational fallacy that a driver's presence on a state's highway indicates an agreement to submit to a chemical test for drugs or alcohol upon the lawful request of a police officer”.

Penn, here’s your problem with the above statement. Police do not need the consent of a DUI to take his blood. There is no “implied consent”. The United States Supreme Court ruled long ago that the police can constitutionally take blood from a suspected drunk without consent. For instance, if someone is dead, injured, fails to understand, or just doesn’t want the test, the police have the right to order the test and force it if necessary.

There is no “agreement” to submit merely by using the roads. The state legislatures know this, but want to create the illusion of an implied consent in order to influence drivers into the system because of their belief that consent is required.

The reason for the implied consent statutes is to avoid the potential of fighting a belligerent drunk to force the drunk to submit to a needle. State legislatures don’t want to force their officers to fight and constructed the “implied consent” laws that require remedies for failure to consent. The remedies are similar in some respects, i.e. loss of driving privileges, AA meetings, and dissimilar in others, i.e. no jail time. The end result is the same, the driver is taken off the road.

The implied consent laws are statutory in nature and differ between states. In New Jersey, it appears that one either consents or is charged under a separate statute for failure to consent with the same remedies. N.J. ruled that because the sanctions are essentially criminal, the criminal burden of proof applies. Arizona refers the matter to an administrative remedy and it is civil in nature

PODoc:
All constitutional defenses have been raised against this scheme many times, and as indicated above, the Supreme Court has ruled that none apply. See generally, Schmerber v. California, 384 U.S. 757. The police have the right to force you to take the test. They just don't want to.
If you don't take the test, you are not "guilty" of a DUI. Instead, you are in violation of a civil statute, failure to take the test, with sanctions including loss of your license (in Arizona, in NJ it is a criminal statute).
I'm sure the insurance companies look at it the same and in a civil case regarding an accident, it is a huge admission against interest, but they are different animals.

[Blue]

Originally Posted by PedOncoDoc

Perhaps this should go to another thread, but here's my question in response to the above:

Why doesn't the 5th amendment apply to refusing breathalyzer testing? From my understanding, breathalzyer refusal automatically gets you a DUI/DWI conviction.

That is incorrect. Refusal does not mean automatic conviction. It usually does mean, however, a suspension of your driving privileges for a set period of time (a matter of civil law), completely apart and separate from the DWI charges and whatever happens with them (a matter of criminal law).

As to the original post...yes, complete apples and mangos. And it will depend greatly on what state you are talking about, and its contract law.

[Penn]

Thank you all for the new compass points
Contracts


New Jersey Statutes - Title 12A Commercial Transactions


12A:2A-202. Final written expression: parol or extrinsic evidence.

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:

(1) by course of dealing or usage of trade or by course of performance; and

(2) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

L.1994,c.114,s.1.
L.1994,c.114,s.1.

States that “Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such
terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:
(1) by course of dealing or usage of trade or by course of performance; and
(2) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”

rent was paid consistently in two equal installments
(1)Course of preformance
Rent was accepted as payment of rent due, and (2) the installment method used to pay the rent was accepted and is evidenced as a nonverbal agreement expressed in the concept of implied contract.

Implied contracts Although implied in law are called implied contracts, a true implied contract consists of obligations arising from a mutual agreement and intent to promise, which have not been expressed in words. It is misleading to label as an implied contract one that is implied in law because a contract implied in law lacks the requisites of a true contract. The term quasi-contract is a more accurate designation of contracts implied in law. Implied contracts are as binding as express contracts. An implied contract depends on substance for its existence; therefore, for an implied contract to arise, there must be some act or conduct of a party, in order for them to be bound.

over the course of a (7) month period of time sustains the accepted consideration that "consistent performance" of a non verbal agreement to the lease which both parties conduct themselves is evident of their acceptance in, and of, the performance of rent payment is an agreed to non verbal consent modification to the lease terms.





12A:2A-207. Course of performance or practical construction.
(1) If a lease contract involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is relevant to determine the meaning of the lease agreement.
(2) The express terms of a lease agreement and any course of performance, as well as any course of dealing and usage of trade, must be construed whenever reasonable as consistent with each other; but if that construction is unreasonable, express terms control course of performance, course of performance controls both course of dealing and usage of trade, and course of dealing controls usage of trade.
(3) Subject to the provisions of 12A:2A-208 on modification and waiver, course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance.
L.1994,c.114,s.1.


12A:2A-207: Outlining course of performance and practical construction.

Sec (1) of 12A:2A-207 states that for objection to it by the other, “any course of performance accepted or acquiesced in without objection is relevant to determine the meaning of the lease agreement”. This clause clearly references the non verbal implied contract the parties engaged in as a valid consideration.

As such, Sec (2) and Sec (3) confirm acceptance in the change of agreement between the parties, that a implied contract between the parties was operable and became their non verbal useage:

“The express terms of a lease agreement and any course of performance, as well as any course of dealing and usage of trade, must be construed whenever reasonable as consistent with each other; but if that construction is unreasonable, express terms control course of performance, course of performance controls both course of dealing and usage of trade, and course of dealing controls usage of trade”.

(3) Subject to the provisions of 12A:2A-208 on modification and waiver, course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance

Course of performance refers to the systematic and uniform conduct in which parties engage after they enter into a contract. The intent of the parties in regard to the meaning of the agreement is reliably ascertainable through the application of course of performance only when a contract requires a repetitive series of performances. There must be more than one performance, but no particular number is required. The fewer the performances, the more probable it is that such performances cannot constitute a course of performance.

If a party accepts a course of performance without objection, his or her Acquiescence is relevant to determining the meaning of the contract. The recipient of the performance need not expressly assent to the performance; the lack of an objection is sufficient. Unless there has been acceptance without objection, a party who performs cannot benefit from the application of course of performance.

Sometimes the acts of the parties may be inconsistent with the pertinent contractual language. A party may argue that the meaning of the agreement is unequivocal—that the course of performance is inconsistent with the contract provisions—and, therefore, that the express terms of the contract should predominate over the course of performance.

The prevailing view is that no contractual term is so clearly defined that a party cannot demonstrate the way in which the parties actually applied it. Pursuant to the admissibility of the course of performance, and assuming that this evidence is credible, the language selected by the parties has the meaning that they had ascribed to it, and, therefore, no inconsistency exists between the contract provisions and the course of performance

A contract implied in fact is not expressed by the parties but, rather, suggested from facts and circumstances that indicate a mutual intention to contract. Circumstances exist that, according to the ordinary course of dealing and common understanding, demonstrate such an intent that is sufficient to support a finding of an implied contract. Contracts implied in fact do not arise contrary to either the law or the express declaration of the parties. Contracts implied in law (quasi-contracts) are distinguishable in that they are not predicated on the assent of the parties, but, rather, exist regardless of assent.

The implication of a mutual agreement must be a reasonable deduction from all of the circumstances and relations that contemplate parties when they enter into the contract or which are necessary to effectuate their intention. No implied promise will exist where the relations between the parties prevent the inference of a contract.

[Roguish Lawyer]

I agree that the landlord-tenant situation is not sufficiently analogous to the DUI situation to use effectively in this assignment.

Penn, I suggest you ditch the concept entirely and ask yourself why we should and should not find implied consent in the DUI scenario. What are the public policies at issue? For example, does the driver have any rights we should be concerned about, like the right to keep his/her blood alcohol level private? Are we concerned about limiting state power? What about preventing drunk drivers from killing people? At bottom, the question is whether we should condition the right to drive on consent to a blood alcohol test. In an ethics class, I can't imagine that the professor cares about the legal concept of implying consent -- it is an ethics/policy question.