FALLACY OF THE TRANSPLANTED CATEGORY
AbstractThe category of consent typically used in larceny cases was judicially imported into the Factors Act in the course of its interpretation. To illustrate the fallacy in transplanting the criminal category into a statute passed to modernize the law of commercial transactions, this article examines the disparate definition of consent in rape cases. It argues that definitions specific to an area of law are applied on a policy basis, and when transplanted to another context sometimes frustrate policies relevant to that new context which should actually determine the result. After arguing that multiple interpretations of consent are virtually inescapable, the author explores methods of preserving some semblance of uniformity in meaning and avoiding the dangers of a transplanted category. He then surveys how fallacious arguments operate to obscure policy discussions and mislead judges into adopting them.
Keywords:Criminal Law, Jurisprudence, Principal and Agent, Sale of Goods
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