Also known as: freely give · freely gives · voluntary · uncoerced
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A judicial standard directing courts to grant leave to amend pleadings when justice requires. The standard presumes in favor of amendment unless the opposing party shows undue delay, bad faith, or prejudice.
Consent to sexual activity or another act that is provided without coercion, duress, or undue influence from the other party. Consent fails this standard when implicit pressure or power imbalances prevent a free choice.
Each sense below has its own examples, sources, and questions.
A judicial standard directing courts to grant leave to amend pleadings when justice requires. The standard presumes in favor of amendment unless the opposing party shows undue delay, bad faith, or prejudice.
Select any source to read its text and confirm it supports the definition.
Consent to sexual activity or another act that is provided without coercion, duress, or undue influence from the other party. Consent fails this standard when implicit pressure or power imbalances prevent a free choice.
Select any source to read its text and confirm it supports the definition.
Felipe Figueroa transferred his mortgaged warehouse to the lender to avoid foreclosure proceedings. The lender accepted the deed after confirming the transfer was freely given and supported by full discharge of the debt. The court upheld the transaction because no duress tainted the voluntary conveyance.
Frederick Ferguson moved to add a new fraud count after the scheduling order deadline. The court granted the amendment because the request was freely given under the governing standard and the defendant showed no prejudice. The new claim proceeded to discovery.
The court should freely give leave when justice so requires. Amendment is presumed proper unless the opponent demonstrates undue delay, bad faith, or prejudice.
Supporting sources
Floyd Franklin confronted his neighbor over an insult delivered three years earlier. When the neighbor responded with only words, Floyd struck and killed him. The court held that the long-past insult did not constitute adequate provocation because it was not freely given in the moment of the killing.
Felicia Fuentes was charged with assault after her arm jerked during a seizure and struck a bystander. The prosecution conceded that the movement was not a freely given act. The court dismissed the charge for lack of voluntary conduct.
Farah Fox created a trust for her son that included a spendthrift provision. The clause barred both voluntary and involuntary transfers of the beneficiary interest. The court enforced the restraint because the provision was freely given in the trust instrument.
Faye Fuller sold her inventory to Freeman Engineering and then immediately resold the same goods to a third party. The buyer treated the resale as a freely given affirmative act rendering performance impossible. The court found anticipatory repudiation and awarded damages.
Consent is not freely given when one party uses implicit pressure or a power imbalance that leaves the other person no reasonable alternative. Courts examine whether the complaining witness could truly exercise free choice under the circumstances.
Supporting sources
…criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment. . . commanding that no person shall be compelled in any criminal case to be a witness against himself.' " In Bram , the…