Consensus Tollit Errorem


The meaning of this maxim is “consent waives the mistake”. This maxim is in the American and English Jurispudence from 1993. Broom says that “the acquiescence of a party who might take advantage of an error obviates its effect”. The doctrine of waiver is based on this maxim. A person who acquiescence to an error cannot afterwards takes advantage of the error, such acquiescence having manifested itself in such unmistakable terms that the error supposed to have been committed by him would be no longer error after all.[1]

There is an old cases given in illustration of this maxim are where dower ad ostium eoclesiw, or ex assensu patris, was made to a woman who was the age of 9 years. It was being done by the consent of the parties, and where a veivire facias[2] was awarded to the coroner[3] and not to the sheriff. In this case the jury came out of a wrong place and all this were due to the irregularities of the consent of the parties, thus the trials had thereupon were held good. In this situation it becomes immaterial that what is pleaded and not denied but it shall be taken as admitted, and the jury cannot find to the contrary. The condition here is that if the defendant in an action of covenant does not plead non est factum, the execution of so much of the deed as is on the record is admitted. Suffering judgment by default is an admission on the record of the cause of action; as, in an action against the acceptor of a bill of exchange, the defendant, by suffering judgment by default, admits a cause of action to the amount of the bill.

Whenever there is sale of lands and tenements and if any third person having any right or title to such lands or tenements when about to be sold, knowing of his own title and of the sale, neglects to give the purchaser notice thereof, he shall never after be permitted to set up such right to avoid the purchase. The negation of giving notice seems to be fraud to the intended purchaser and in such case in fancy and concealing shall be no excuse. Again, where a judge acts in a matter not within his jurisdiction, the parties attending and consenting, or if he is not objecting then it would be considered that they are bound by his decision. In some cases a judge act as an Interpleader order which he had not authority to make without consent, and there was no express consent, but the parties attended the hearing and making the order without objection, it was held, that they by their conduct must be taken to have consented to abide by his decision.

It has been seen that the practice of the courts, both of law and equity, has also at all times been in accordance with this rule accepted it as a convenient and proper mode of settling disputes. It is in the nature of a contract between the parties, and one which the courts will not willingly disturb, and indeed will not disturb, if injury or loss has been or is likely to be sustained by one or other of the parties in consequence of such consent. Consent of the parties will cure error in proceedings for want of form or other irregularity, but it will not cure a nullity or an illegality. Consent is as much given in standing by without objection as in actual expressed assent.


Consent always needs to be obtained without any force or coercion. But there are some circumstances where the parties had given their consent willingly and afterwards try to deny this fact then in such cases the denial is not being accepted by the court. The court had made it clear from its various judgements that the consent once given can’t be get denied on the ground that it had been given erroneously.

[1] Coker vs. Ogunlola (1989)2 N.W. L.R.(Part 5) 87/89.

[2] A writ authorizing the sheriff to obtain satisfaction of a judgement in debt or damages from the goods and chattels of the defendant.

[3] A government official responsible for safeguarding the private property of the crown.

Author: Prity Kumari,
Central University of South Bihar, 2nd year

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