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Free Consent Under Contract

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 caused by:

  1. Coercion defined in sec – 15 or
  2. Undue influence sec – 16 or
  3. Fraud under sec- 17 or
  4. Misrepresentation sec – 18 or
  5. 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 any person.
  • 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.

Undue Influence

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 moral fraud.

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 true.
  • 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.

Misrepresentation

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:

  1. 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.
     
  2. Negligence or fraudulent misrepresentation, in which breach of duty, negligence of a party make loss to opposite party. it was held in the case Esso Petroleum co. Ltd v. Mardon that it is actionable and damages are claimed by affected party.


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:

  1. 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.
     
  2. 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.

Conclusion
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. 

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