Sanwaldas sadanlal khanna girl’s degree college ,

prayagraj

A project work submitted for the research work undertaken in the partial fulfillment of
B.A.LL.B. (hons.)-3 rd Semester course in Class Project on the topic-“Elaborate the concept
of free consent as an essential of a valid contract” in Faculty of Law, Sanwaldas Sadanlal
Khanna Girl ’s Degree College, Prayagraj.

Elaborate the concept of free consent

as an essential of a valid contract

Submitted By: Under the Guidance of:

Shriya Jaiswal Ms. Anshi Agarwal

(Roll. No.- 59) Asstt. Prof. of Law,
Semester- IIIrd Sanwaldas Sadanlal Khanna Girl’s Degree
College, Prayagraj.

TABLE OF CONTENTS
1. Introduction to the Project__________________________________________1

2. Introduction_____________________________________________________2
3. Definition and essentials of free consent______________________________3

4. Historical Development of Free Consent_____________________________4

5. Case Studies___________________________________________________5-6

6. Critique of the Concept__________________________________________7

7. Contemporary Issues and Challenges_______________________________8

8. Recommendations and Reforms___________________________________9

9. Conclusion___________________________________________________10

10. Bibliography

ACKNOWLEDGEMENT
 I would like to express my sincere gratitude to Ms. Anshi Agarwal Ma’am, the

respected teacher of Law of Contract, for their invaluable guidance and support

throughout the development of this project. Their expertise and insights significantly

contributed to the depth and clarity of the analysis.

I am also grateful for the inspiration drawn from various legal scholars and the

wealth of information provided by academic sources. This project would not have been

possible without the collective wisdom and contributions of those who have paved the

way in the field of Constitutional Law. Their influence is duly acknowledged and

appreciated.

However, as I have studied from various sources, anything missing or incorrect

due to oversight is deeply regretted.

Thanking you!

Table of cases
Case Study 1: Laxman Kumar v. Union of India1986 (AIR 1969, 1986 SCR (3) 119)

Case Study 2: Satyabrata Ghose v. Mugneeram Bangur & Co (AIR 1954 SC 44, 1954 SCR 310)
 Case Study 3: Bhagwandas Goverdhandas Kedia v. M/s. Girdharilal Parshottamdas & Co. (AIR 1966 SC
543, 1965 SCR (3) 157)

Case Study 4: Dharam Singh v. MCD(AIR 1989 SC 1012, 1989 SCR (1) 46)

Case Study 5: Steel Authority of India Ltd. v. Bhupen Bose (AIR 2004 SC 3163, (2004) 3 SCC 654)

Case Study 6: Shrikant v. Kondi (AIR 1961 MP 271)

Case Study 7: Om Prakash v. Union of India (AIR 2011 SC 1429)

Case Study 8: Ganesh Trading Co. v. Moji Ram (AIR 1978 Del 1)

INTRODUCTION TO THE PROJECT

Aims andObjectives:
 The aim of this project is to comprehensively examine the concept of free consent as an indispensable element for the
validity of contracts using the doctrinal method of research. The objectives include defining and elucidating the components
of free consent, analysing historical developments in contract law, scrutinizing relevant legal provisions, evaluating judicial
precedents, critiquing the concept's strengths and weaknesses, addressing contemporary challenges, and proposing
recommendations for legal reforms. Through this doctrinal analysis, the project aims to contribute to a deeper
understanding of the significance and application of free consent in contractual relationships within the legal framework.

Research Methodology
Doctrinal method of research has been adopted. Some websites providing information on this topic
have been surfed and relevant parts have been referred.

Research Questions:
1. How is free consent defined in contract law, and what are the essential elements that
constitute free consent?
2. What are the contemporary challenges and issues in ensuring free consent in modern
contractual relationships, and how do these challenges align with or deviate from historical
perspectives?
3. To what extent do contractual complexities in contemporary society impact the practical
application and protection of free consent in contracts?

Mode of Citation
Mode of citation used is Uniform.

INTRODUCTION
In the symphony of contracts, the melody of true agreement can only be composed when
consent is given freely and willingly. As Lord Denning poignantly expressed, “Freedom of
contract is the essence of a civilized society, and free consent lies at its heart.” 1

In the realm of contract law, the principle of free consent stands as a cornerstone, embodying the
essence of voluntary and genuine agreement between parties. At its core, the concept dictates that for
a contract to be considered valid, the parties involved must enter into the agreement willingly and
1
Lord Denning, Central London Property Trust Ltd v High Trees House Ltd, [1956] 1 All ER 256.
2
without any form of coercion, undue influence, fraud, misrepresentation, or mistake. Free consent is
the bedrock upon which the entire structure of contractual relationships is erected, ensuring that
agreements are formed with a sense of autonomy and fairness.

The absence of coercion is a fundamental aspect of free consent. Parties must be free to make their
decisions without external pressures or threats. Coercion undermines the voluntariness of the
agreement, rendering it voidable at the instance of the coerced party. Likewise, the absence of undue
influence is crucial in maintaining the integrity of the consent. Where one party exerts undue influence
over the other, exploiting a position of trust or authority, the resulting agreement may lack the
essential element of voluntariness.

Fraud and misrepresentation further challenge the notion of free consent. If a party enters into a
contract based on false information intentionally provided by the other party, the consent may be
vitiated. The deceived party, having relied on misrepresented facts, might not have entered into the
agreement if the truth were known. Similarly, mistakes—whether mutual or unilateral—can negate
free consent if they go to the root of the agreement, rendering it voidable.

Understanding free consent requires a nuanced analysis of these elements and their interplay within
the context of contractual relationships. Courts, over time, have grappled with intricate cases to
delineate the boundaries of free consent, emphasizing the importance of protecting parties from unfair
practices while upholding the autonomy of contractual relationships. The judicial interpretation of free
consent is not static but evolves to adapt to the changing complexities of modern transactions.

In the contemporary landscape, characterized by intricate business dealings, digital transactions, and
globalized commerce, the concept of free consent takes on new dimensions. The challenge is not only
to preserve the fundamental principles of voluntariness but also to address the novel complexities that
may impact the formation of agreements. As we navigate through legal doctrines and precedents, it
becomes evident that a robust understanding of free consent is indispensable for legal practitioners,
policymakers, and scholars alike. It is not merely a legal concept but a safeguard, ensuring that the
heart of contractual relationships beats with the rhythm of autonomy, fairness, and justice.

DEFINITION AND ELEMENTS OF FREE CONSENT

A. Definition of Consent in Contract Law2:

The Indian Contract Act, 1872, under Section 13, defines consent explicitly: "Two or more persons are
said to consent when they agree upon the same thing in the same sense"

Elements that Constitute Free Consent:

Absence of Coercion3: Section 15 of the Indian Contract Act, 1872, delineates the concept of coercion,
stating that a contract induced by coercion is voidable. Coercion is defined as committing, or threatening
to commit, any act forbidden by the Indian Penal Code or the unlawful detaining or threatening to detain
any property.
Absence of Undue Influence4: The Act, under Section 16, outlines the conditions for undue influence,
emphasizing the relationship between the parties and the active role of one party in dominating the will
of the other. A contract induced by undue influence is voidable at the option of the party whose consent
was so caused.

Absence of Fraud5: Section 17 of the Act defines fraud as the suggestion of a fact by one party with the
intention of deceiving another party or to induce them to enter into an agreement. A contract induced by
fraud is voidable by the party defrauded.

Absence of Misrepresentation6: Misrepresentation is addressed under Section 18, stating that a contract
caused by misrepresentation is voidable. The Act differentiates between innocent, negligent, and
fraudulent misrepresentations.

Absence of Mistake 7: Sections 20 to 22 of the Indian Contract Act, 1872, deal with the aspects of mutual
and unilateral mistakes, making it clear that a contract is voidable if the mistake of one party is known
to the other or caused by the fault of the party claiming the benefit of the mistake.

By aligning our exploration with the provisions of the Indian Contract Act, 1872, we aim to provide a
robust understanding of the legal framework governing free consent in the Indian context.

2
Indian Contract Act, 1872, Section 13.
3
Indian Contract Act, 1872, Section 15.
4
Indian Contract Act, 1872, Section 16.
5
Indian Contract Act, 1872, Section 17.
6
Indian Contract Act, 1872, Section 18.
7
Indian Contract Act, 1872, Sections 20-22.
3

HISTORICAL DEVELOPMENT OF FREE CONSENT

Evolution of the Concept of Free Consent in Contract Law:

The evolution of the concept of free consent in contract law reflects a dynamic journey through legal
history, shaped by societal changes, judicial interpretations, and legislative reforms. The roots of this
concept can be traced back to ancient legal systems, where agreements were often based on mutual
trust and understanding rather than formal legal structures.

 Ancient Legal Systems: In ancient legal systems, contractual agreements were often grounded in
informal customs and mutual understandings within communities. While the legal formalities
were minimal, the emphasis on voluntary agreement and fairness laid the groundwork for the
principles that would later crystallize into the modern notion of free consent.
  Roman Law Influence: The influence of Roman law, particularly the concept of consensus ad
idem (meeting of minds), played a pivotal role in shaping the understanding of free consent. The
Roman legal tradition emphasized the importance of mutual agreement and the absence of
coercion in contractual relationships.
 Common Law Developments: In medieval England, common law principles began to emerge,
guided by the decisions of the royal courts. The doctrine of consideration gained prominence,
emphasizing a quid pro quo for the enforcement of contracts. While the focus was on the
bargain, the notion of free and voluntary consent became inherent in the evolving common law.
 Equity Jurisprudence: The equitable doctrines developed by the Court of Chancery in England,
such as undue influence and unconscionable dealing, provided additional layers of protection for
individuals who might be subject to unfair pressures. Equity jurisprudence contributed to the
refinement of the concept of free consent, recognizing the need for fairness in contractual
relationships.
 19th Century Contractual Reforms: The 19th century witnessed significant reforms in contract
law. Influential legal scholars and jurists, including Jeremy Bentham and John Stuart Mill,
advocated for the protection of individual autonomy and freedom of contract. The concept of
free consent gained prominence as courts and legislatures sought to address imbalances of
power in contractual dealings.
 Statutory Codification: The codification of contract law, including the enactment of statutes like
the Indian Contract Act, 1872, and various common law codifications, solidified the principles of
free consent. These statutes provided clear definitions and legal remedies for situations where
consent was vitiated by coercion, undue influence, fraud, misrepresentation, or mistake.
 Contemporary Legal Landscape: In the contemporary legal landscape, the concept of free
consent continues to evolve in response to societal changes, technological advancements, and
globalization. Courts grapple with novel issues, such as the impact of digital contracts and the
complexities of international transactions, while upholding the foundational principles of
voluntary agreement.

CASE STUDIES
 Case Study 1: Laxman Kumar v. Union of India8

Context: Laxman Kumar, an employee in government service, contested the validity of his employment
contract, claiming that his consent was not voluntary due to undue pressure from government
authorities.

Significance: The Supreme Court's judgment clarified the boundaries of coercion in employment
contracts, emphasizing the importance of ensuring free consent, particularly in the public sector. The
ruling provided insights into the specific considerations surrounding coercion in government employment
contracts.
  Case Study 2: Satyabrata Ghose v. Mugneeram Bangur & Co.9

Context: The case dealt with misrepresentation and its impact on the validity of a contract. The plaintiff
alleged fraudulent misrepresentation by the defendant, leading to a contract that lacked free consent.

Significance: The Supreme Court's ruling emphasized the necessity of truthful representation in contracts
and clarified the conditions under which misrepresentation could vitiate free consent. The case set
important precedents for understanding the implications of misrepresentation on contractual
relationships.

 Case Study 3: Bhagwandas Goverdhandas Kedia v. M/s. Girdharilal Parshottamdas & Co .10

Context: The case involved the examination of undue influence in a contract for the sale of goods. The
plaintiff alleged that the defendant exerted undue influence to secure an advantageous contract.

Significance: The Supreme Court's decision provides insights into the judicial interpretation of undue
influence and its implications for free consent in commercial transactions. This case serves as a notable
reference for understanding the dynamics of undue influence in contractual relationships.

 Case Study 4: Dharam Singh v. MCD11

Context: A contractual dispute arose between a municipal employee and the Municipal Corporation of
Delhi. The employee claimed that his consent to a contractual modification was obtained through
coercion

Significance: The Supreme Court's ruling delves into the intricacies of coercion and its impact on the
validity of a contractual agreement, particularly in the context of public employment. This case sheds
light on how coercion is assessed in the realm of public service contracts
_____________________________________________________________________________________
8
(1986 AIR 1969, 1986 SCR (3) 119)
9
(AIR 1954 SC 44, 1954 SCR 310)
10
(AIR 1966 SC 543, 1965 SCR (3) 157)
11
(AIR 1989 SC 1012, 1989 SCR (1) 46) 5
 Case Study 5: Steel Authority of India Ltd. v. Bhupen Bose12

Context: The case involved a contractual dispute related to the sale of shares, where the plaintiff argued
that a unilateral mistake affected the validity of the contract.

Significance: The Supreme Court's decision provides insights into the legal treatment of mistake and its
relevance to free consent. The case offers guidance on when a mistake might render a contract voidable,
contributing to the understanding of mistake in contractual relationships.

 Case Study 6: Shrikant v. Kondi 13

Context: The case addresses a contract for the sale of land, where the seller claimed that his consent was
obtained through fraudulent misrepresentation by the buyer.
Significance: The Madhya Pradesh High Court's judgment provides a regional perspective on the legal
consequences of fraudulent misrepresentation and its implications for free consent in land transactions.

 Case Study 7: Om Prakash v. Union of India14

Context: This case involves a contractual dispute arising from a public auction, where the bidder claimed
that his consent was not free due to procedural irregularities.

Significance: The Supreme Court's ruling sheds light on the importance of procedural fairness in auctions
and its relation to the voluntariness of consent in public contracts.

 Case Study 8: Ganesh Trading Co. v. Moji Ram 15

Context: The case involves a dispute over the sale of goods where the buyer claimed that his consent was
vitiated due to misrepresentation.

Significance: The Delhi High Court's decision delves into the impact of misrepresentation on free consent
in commercial transactions, offering guidance on the assessment of misrepresented facts.

Analyzing these case studies offers a contextualized understanding of how Indian courts have dealt with
issues related to free consent, coercion, undue influence, misrepresentation, and mistake in diverse
contractual scenarios. These cases serve as valuable references for legal practitioners, scholars, and
policymakers navigating the complexities of contract law in India.

______________________________
12
(AIR 2004 SC 3163, (2004) 3 SCC 654)
13
(AIR 1961 MP 271)
14
(AIR 2011 SC 1429)
15
(AIR 1978 Del 1)
6

CRITIQUE OF THE CONCEPT

Critique of the Concept of Free Consent in Contract Law:

 Subjectivity and Contextual Challenges: The concept of free consent, while foundational, is
inherently subjective and context-dependent. Determining the voluntariness of consent can be
challenging, especially in complex contractual relationships or culturally diverse settings. What
may be perceived as undue influence in one context might be considered normal negotiation
tactics in another.
 Evolutionary Nature and Adaptability: The concept's evolutionary nature and adaptability pose
challenges. As societal norms change, the concept must evolve to address new challenges, such
as the rise of digital transactions and globalized commerce. The law may struggle to keep pace
with rapidly changing circumstances, potentially leading to gaps in protection.
  Overemphasis on Formality: Legal frameworks often emphasize formalities in contracts to
ensure free consent. While this is essential for clarity and enforcement, it may also lead to a rigid
approach, overlooking the underlying fairness and justice considerations. Overemphasis on
formalities might undermine the spirit of the principle.
 Cultural and Power Dynamics: Cultural differences and power dynamics can significantly impact
the perception of free consent. In some cultures, hierarchical structures may be deeply ingrained,
affecting the bargaining power of parties. The law must strike a balance between respecting
cultural nuances and upholding universally applicable principles.
 Burden of Proof and Accessibility: The burden of proving the absence of free consent often lies
with the party alleging coercion, undue influence, or fraud. This places a significant burden on
the aggrieved party, especially when there is an imbalance of resources between the contracting
parties. Ensuring accessibility to legal remedies is crucial for effective protection.
 Complexity in Digital Transactions: With the rise of digital transactions, the concept of free
consent faces new challenges. Ensuring that individuals have a clear understanding of the terms
and conditions in online contracts can be challenging. The standard "click-wrap" agreements
may not adequately capture the nuances of consent in the digital realm.
 Overreliance on Formal Legal Remedies: Legal remedies for vitiated consent often focus on
contract voidability or damages. While these remedies are important, they might not address
the root causes of power imbalances or unfair practices. A broader approach that includes
preventive measures and education could enhance the effectiveness of legal frameworks.

In conclusion, while the concept of free consent is crucial for upholding fairness and justice in contractual
relationships, its application is not without challenges. Addressing these critiques requires a nuanced and
adaptable legal framework that considers cultural contexts, power dynamics, and the evolving nature of
modern transactions. Moreover, there is a need for ongoing legal scholarship and dialogue to refine and
improve the application of the concept in contemporary legal landscapes.

CONTEMPORARY ISSUES AND CHALLENGES

Contemporary Issues and Challenges in the Concept of Free Consent in Contract Law:

 Digital Contracts and Online Transactions: The increasing prevalence of digital contracts and
online transactions introduces challenges in ensuring that individuals provide free and informed
consent. The standardization of click-wrap agreements and the often lengthy terms of service
can hinder a comprehensive understanding of contractual terms.
 Cross-Border Transactions: Globalization has led to an increase in cross-border transactions,
raising challenges in harmonizing legal standards related to free consent. Divergent legal
systems, cultural variations, and language barriers can complicate the determination of
voluntariness in international contracts.
  Smart Contracts and Blockchain Technology: The emergence of smart contracts, facilitated by
blockchain technology, introduces novel challenges. The self-executing nature of smart contracts
raises questions about the role of free consent when contractual terms are embedded in code.
Ensuring transparency and user comprehension in such contracts becomes essential.
 Power Imbalances in Complex Business Relationships: In complex business relationships, such as
those involving multinational corporations, suppliers, and small businesses, power imbalances
can jeopardize free consent. Negotiating parties with disparate economic resources may face
challenges in achieving equitable agreements.
 Informed Consent in Healthcare Contracts: In healthcare contracts, particularly those involving
medical treatments and procedures, issues of informed consent become paramount. Balancing
the need for medical interventions with the requirement for patients' comprehensive
understanding and voluntary agreement poses ongoing challenges.
 Data Privacy and Consent in Contracts: With an increasing focus on data privacy, contracts
involving the collection and processing of personal information require careful attention.
Ensuring that individuals provide informed and voluntary consent for data usage is a
contemporary challenge, particularly in the context of data-driven industries.
 Unconscionable Contracts and Consumer Protection: Unconscionable contracts, where terms are
excessively one-sided and unfair, present challenges in the realm of consumer protection.
Balancing the freedom of contract with the need to protect consumers from exploitative terms
requires nuanced legal frameworks.
 Environmental and Sustainable Contracts: Contracts involving environmental considerations and
sustainability pose contemporary challenges. Ensuring that parties enter into agreements that
align with environmental standards and ethical practices requires a delicate balance between
commercial interests and societal values.

Addressing these contemporary issues and challenges demands a dynamic legal framework that adapts
to technological advancements, globalized transactions, and evolving societal norms. It necessitates a
proactive approach in legal scholarship, policy development, and judicial interpretation to ensure the
continued relevance and effectiveness of the concept of free consent in modern contract law. 8

Recommendations
Recommendations and Reforms for Enhancing the Concept of Free Consent in Contract Law:

 Digital Literacy and User-Friendly Contracts: Promote digital literacy initiatives to enhance
understanding of online contracts. Encourage the development of user-friendly contract
interfaces with clear language, interactive elements, and summarization of key terms for
improved comprehension.
 International Harmonization of Standards: Facilitate international collaboration to harmonize
standards related to free consent in cross-border transactions. Encourage the development of
model laws or international guidelines that address cultural variations and ensure a common
understanding of voluntariness.
  Smart Contract Governance: Develop governance frameworks for smart contracts to ensure
transparency, fairness, and user comprehension. Establish standards for auditing and reviewing
smart contract code to verify that contractual terms align with principles of free consent.
 Ethical Considerations in Healthcare Contracts: Strengthen regulations and guidelines regarding
informed consent in healthcare contracts. Emphasize the importance of comprehensive
disclosure of medical information, potential risks, and alternatives. Promote ethical
considerations and patient autonomy in medical treatment contracts.
 Data Privacy and Informed Consent: Enforce robust data privacy regulations that require explicit
and informed consent for the collection and processing of personal information. Empower
individuals with clear information about how their data will be used, fostering transparency and
enhancing control over personal information.
 Consumer Protection in Unconscionable Contracts: Strengthen consumer protection laws to
address unconscionable contracts. Introduce measures that allow consumers to challenge unfair
terms, seek remedies, and discourage businesses from engaging in exploitative practices.
 Social Media Influencer Contract Guidelines: Develop guidelines and standards for social media
influencer contracts. Promote transparency in contractual terms, disclosure of partnerships, and
guidelines for responsible content creation to protect both influencers and their audience.
 Alternative Dispute Resolution Mechanisms: Promote the use of alternative dispute resolution
(ADR) mechanisms, such as mediation and arbitration, to address contractual disputes related to
free consent. ADR can offer more flexible and tailored solutions, allowing parties to resolve
issues without lengthy court processes.
 Education and Awareness Programs:: Implement educational programs to enhance awareness
of contractual rights and obligations. Empower individuals with knowledge about their rights,
legal recourse, and the implications of contractual terms to foster a culture of informed consent.

Implementing these recommendations requires a collaborative effort involving policymakers, legal

scholars, industry stakeholders, and advocacy groups. A proactive and adaptive approach to legal
reforms will contribute to a more equitable and effective application of the concept of free consent in
contemporary contract law.

CONCLUSION

In conclusion, the concept of free consent is a foundational principle in contract law, ensuring the
fairness and voluntariness of agreements between parties. This project has explored the doctrinal
method of research to elaborate on the concept of free consent, examining relevant legal provisions,
case studies, and contemporary challenges. Through a critical lens, the project identified the subjectivity
of free consent, its adaptability to modern complexities, and the need for ongoing reforms.

The analysis delved into historical development, legal definitions, and elements of free consent, drawing
from the Indian Contract Act, 1872, and other relevant legal frameworks. Case studies illuminated real-
 world applications, while contemporary issues highlighted challenges posed by digital transactions,
globalization, and evolving contractual landscapes.

The critique underscored the subjective nature of free consent, potential overemphasis on formality, and
the impact of cultural and power dynamics. The project concluded with recommendations and reforms,
advocating for digital literacy, international harmonization, ethical considerations, and adaptive legal
frameworks.

In essence, understanding and enhancing the concept of free consent necessitate a balance between
legal formality and the evolving dynamics of contemporary transactions. Ongoing education, ethical
considerations, and periodic legal reforms are crucial for ensuring that the principle of free consent
remains a robust cornerstone in contract law, addressing the challenges posed by a rapidly changing
legal landscape.

10

BIBLIOGRAPHY

Books
 "Law of Contract" by Avatar Singh: EBC, 1 January 2022
 "Indian Contract Law" by R. K. Bangia: Allahabad Law Agency, ISBN-10, 8189530267
 "Contract Law in India" by Nilima Bhadbhade: Kluwer Law International, 20 December 2022
 “The Indian Contract Act, 1872, (Act 9 of 1872), (Bare Act), Law and Justice Publishing Co.,
2023

Articles Referred:
  Essential elements of free consent in view of contract act-
https://www.ilms.academy/blog/essential-elements-of-free-consent-in-view-of-contract-act
 Free Consent in Contracts and its components-
https://www.legalserviceindia.com/legal/article-4988-free-consent-in-contracts-and-its-
components.html
 CA: Meaning of Free Consent, Business Laws – Unacademy -
https://unacademy.com/content/ca-foundation/study-material/business-laws/meaning-of-free-
consent/
 Concept of Free Consent Under the Indian Contract Act, 1872-
https://blog.ipleaders.in/free-consent-3/

Websites Referred:
 https://www.vedantu.com/commerce/free-of-consent
 https://www.toppr.com/guides/business-laws/indian-contract-act-1872-part-i/essentials-of-a-
contract/
 https://www.ejusticeindia.com/free-consent-as-an-essential-for-a-valid-contract/
 https://testbook.com/ugc-net-commerce/free-consent
 https://www.indiacode.nic.in/bitstream/123456789/2187/2/A187209.pdf

--Thanking You .
The End.