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Free Consent

Free Consent

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Published by dilfarazz

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Published by: dilfarazz on Feb 18, 2010
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11/08/2012

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FREE CONSENTOne of the essentials of a valid contract mentioned in Section 10
is that the parties should enter into contract with free consent.According to Section 14, Consent is said to be free when it is notcaused by –
 1.coercion, as defined in Section 15, or 
2.
undue influence, as defined in section16, or 3.fraud, as defined in Section 17, or 4.misrepresentation as defined in Section 18, or 5.mistake, subject to the provisions of Section 20, 21 and 22.
Consent is said to be so caused when it would not have been givenbut for the existence of such coercion, undue influence, fraud,misrepresentation or mistake.If the
 
consent of one of the parties is not free consent, i.e., it has beencaused by one or other of the above stated factors the contract is not avalid one. When consent to an agreement is caused by fraud,coercion, misrepresentation or undue influence, the agreement is acontract voidable at the option of the party whose consent was socaused. If, however, the consent is caused by mistake the agreementis void.
1.COERCION
According to Section 15, “Coercion” is the committing, or threateningto commit, any act forbidden by the Indian Penal Code, or theunlawful detaining, or threatening to detain, any property, to theprejudice of any person whatever with the intention of causing anyperson to enter into an agreement.Coercion is said to be there when the consent of a person has beencaused either by(i)committing, or threatening to commit any actforbidden by the Indian Penal Code, or by(ii)unlawful detaining, or threatening to detain anyproperty, to the prejudice of any personwhatever.Free ConsentPage 1 of 29N.P.Noronha
 
)
Act forbidden by the Indian Penal Code
It has been noted that if a person commits or threatens to commit an actforbidden by the Indian Penal Code with a view to obtain the consent of the other person to some agreement, the consent in such case isdeemed to have been obtained by coercion. For instance, A threatensto shoot B if B does not agree to sell his property to A at a statedprice, B’s consent in this case has been obtained by coercion.For coercion to be there it is not necessary that the Indian Penal Codeshould be applicable at the place where the consent has been socaused. Explanation to section 15 makes it clear that to constitutecoercion, “it is immaterial whether the Indian Penal Code is or is not inforce in the place where the coercion is employed.” The followingillustration would explain the point :A, on board an English ship on the high seas, causes B to enter intoan agreement by an act amounting to criminal intimidation under theIndian Penal Code. A has employed coercion, although his act is notan offence by the law of England, and although section 506 of theIndian Penal Code was not in force at the time when, or at the placewhere, the act was done.
In Chikkam Ammiraju Vs. Chikkam Seshama (1918)
the questionbefore the Madras High Court was that whether coercion could becaused by a threat to commit suicide. In this case a Hindu by a threatof suicide induced his wife and son to execute a release deed infavour of his brother in respect of certain properties claimed as their own by the wife and the son. The question before the court waswhether a threat to commit suicide could be considered to be an actforbidden by the Indian Penal Code. It was held by Wallis, C.J. andSeshagiri Ayyar, J. that a threat to commit suicide amounted tocoercion within the meaning of Section 15 of the Indian Contract Actand therefore the release deed was voidable.i)
Unlawful detaining of property
According to Section 15 coercion could also be caused by unlawfuldetaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.Free ConsentPage 2 of 29N.P.Noronha
 
For example, if an outgoing agent refuses to handover the accountsbooks to the new agent until the principal executes release in hisfavour, it is coercion. (
Muthiah Chettiar Vs. Karupan (1927)
If the detention of property is not unlawful there is no coercion. Thus, if a mortgagee refuses to convey the equity of redemption except on theterms dictated by him, there is nothing unlawful in it and, therefore, nocoercion is caused in this case.
(Bengal Stone Co. Ltd. Vs. JosephHyam (1918)To the prejudice of a person
Section 15 requires that there is committing or threatening to commit,any act forbidden by the Indian Penal Code, or the unlawful detaining,or threatening to detain, any property, to the prejudice of any personwhatever, with an intention of any person to enter into an agreement.It means that the act causing coercion should not necessarily bedirected against the contracting party, it is enough that the act is tothe prejudice of any person whatever, and with the intention of anyperson to enter into an agreement. If, for example, A unlawfullydetains B’s friend C, in order to coerce B to enter into agreement,the case would be covered within this section.
Threat to strike is no coercion
In
Workmen of Appin Tea Estate Vs. Industrial Tribunal (1966)
the demand of the workers for bonus was accepted after a threat of strike. The question which had arisen was, whether such a decisionbetween the Union of the workers and the Indian Tea Associationcould be declared void on the ground that there was coercion. It washeld that because of the doctrine of collective bargaining under theIndustrial Dispute Act the demand of the workers could be backed by athreat of strike. Such a threat was neither a threat to commit anoffence under the Indian Penal Code, nor was it unlawful detaining or threatening to detain any property and hence it did not amount tocoercion, and as such the agreement was valid.Free ConsentPage 3 of 29N.P.Noronha

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