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Updated: June 4, 2025
Much that is indefensible, and much more that is obscure, has been written about the Consensual Contracts, and it has even been asserted that in them the consent of the Parties is more emphatically given than in any other species of agreement. But the term Consensual merely indicates that the Obligation is here annexed at once to the Consensus.
The Consensus draws with it the Obligation, performing, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the Res or Thing, by the Verba stipulationis, and by the Literæ or written entry in a ledger. Consensual is therefore a term which does not involve the slightest anomaly, but is exactly analogous to Real, Verbal, and Literal.
Evidently, since no theory is absolutely false, there is even in this consensual theory a share of truth, and the liberty of emigration may be an instance of it as long as this liberty is compatible with the economic interests of the class in power.
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