Consent exist when one person voluntarily acknowledge to the proposal or desire
of another person. Consent is employed in several field like law, medicine,
research and relationship. Free consent means a consent giving to an individual
for the performance of an act on his own will. Here we see the consent and
free consent under Law of Contract Act.
Definition Under Contract
The Law of Contract Act 1872 is a law following in India from British rule. It
divided into two parts, they are general principle of Contract from sec 1 to 75
and special kinds of contract from sec 124 to 238.
As by this Law of Contract
all agreements are contracts if they are made by:
- free consent of parties,
- competent to contract,
- lawful consideration,
- with lawful object, and
- Thereby not expressly declared void.
As by above free consent is essential element for valid contract. Here as by
section 13 consent means, when two or more persons are agree upon the same thing
within the same sense.
As per section 14 free consent is a consent which is not
- Coercion defined in sec – 15 or
- Undue influence sec – 16 or
- Fraud under sec- 17 or
- Misrepresentation sec – 18 or
- Mistake under sec – 20, 21 and 22.
Void And Voidable Contract
Contract is not valid in the absence of free consent or genuine consent as noted
to English Law. Consent is not said to be free if it is caused by coercion,
Undue influence, fraud, misrepresentation and mistake. The contract render
voidable if there is error in cause or the inducing cause. Mistake is vitiating
factor, it is by error in consensus and prevent the meeting of mind needed for
concluding a contract, It render a contract void.
Thus, in case of a mistake the
contract is void but in other cases like coercion, Undue influence, fraud and
misrepresentation the contract is only voidable under section 19, 19A, consent
was not free at the option of party.
Coercion Under Sec–15
Coercion is aimed against any person by:
- committing or threatening to commit any act which forbidden by Indian
Penal Code 1860.
- Unlawful detaining or threatening to detain any property to the bias of
- The intention of causing any person enter into an agreement.
Consent acquired by such an act amounts to coercion under Indian Contract Act
and it is voidable in nature.
In Ammiraju v. Seshamma the court held that coercion may aim against any
person, stranger and also against a good for example unlawful detention.
As per section 16 undue influence means a person dominant the will of the other
by using the position to acquire an unfair advantage over the other.
There are certain relationship in which one party is in position to dominate the
will of other party. Such relationship holding a real or apparent authority over
the other or standing in a fiduciary relation to the other and makes a contract
with a person whose mental capacity is temporarily or permanently strained by
the reason of age, illness or bodily distress.
Burden of prove the undue influence in the contract of fiduciary relationship is
lies on the dominant party. If the transaction is due to unconscionable the
dominant party have to prove that there is no undue influence. In case of
pardanashin women the burden of prove lies on the person who benefits from such
transaction and a full disclosure about the transaction to that women. For other
transaction weaker party prove the influence. This provision can not affect the
provisions of Section 111 of Indian Evidence Act, 1872. Thus a consent by Undue
influence is voidable.
Fraud Sec - 17
The term fraud means a representation of fact willfully to make another person
to cheat. As by the section 17 fraud mean any act committed by party of
Contract, abetting, by agent with intention to deceive another person or his
agent or induce him to enter into a contract.
This section is based on Taylor v. Ashton case, in which the court observed
that, the defendant not necessary to show that he knew the fact to be untrue,
statement of untrue fact for the fraudulent purpose consider as a legal and
Essential ingredients of fraud are as follow:
- representation or assertion relating to fact,
- it made with the knowledge that it is false or without belief in its
- made other party to act upon his claim
- the person acting is to made loss or damage.
The conduct of representation of fraud must be deliberately dishonest. Active
concealment of fact with the knowledge or belief of the fact is also amounts to
fraud. There are certain exceptions to the general rule “ silence not amounts to
representation and not amount to fraud” are Insurance Contracts, Family
Settlement, contract for allotment of shares in company, parents and child,
guardian and wards, which are required disclosure and good faith.
Simply said misrepresentation is a false representation made innocently without
any intention to deceive other person. It is a false statements made by a
person, believe it to be true. As per section 18 of Contract Act, 1872
Misrepresentation means a positive claim, not guaranteed by the information of
the person who creates it, is not true, be true even if he believes. Consent
obtained by misrepresentation is voidable.
Misrepresentation is two kinds they are:
- Innocent misrepresentation, in which the assertion is false but the
person making it believes it is true and not know it is false so, damages
cannot claimed but the contract can be rescued.
- Negligence or fraudulent misrepresentation, in which breach of duty,
negligence of a party make loss to opposite party. it was held in the case
Petroleum co. Ltd v. Mardon that it is actionable and damages are claimed by
Mistake A Void Contract
As Per section 20 agreement entered by the parties of Contract under mistake of
fact, such agreement is void. When both the parties to the contract are under a
mistake of fact on essential, subject matter, identity, price or any other
essential matters of the agreement, no contract arises. Consent acquired by a
mistake is void.
There are two kinds of mistake:
- Common Mistake, both the parties make the same mistake. Each party know
the intention of the other and accept it, thus the doctrine of common
mistake render a contract void.
- Mutual Mistake is a misunderstanding between each other and are at
cross-purposes. Mistake of parties fals going to the root of Contract and
essential to an agreement, the agreement is void and unenforceable.
Consent implicit a meeting of mind. If there is no consent and there is no
meeting of mind. If consent obtained without free of mind here the consent under
some influence so free consent is essential ingredients in contract.