Free Consent-

Under Indian Contract Act-

1872

PUTTU GURU PRASAD

INC GUNTUR
Consent Means ( Sec 13)

Consent- two or more persons

are said to consent when they
agree upon the same thing at
the same sense-
Consensus ad idem
When is a consent said to be
free?
When it is not made under Coercion
(Sec15)
When not made under undue influence
( Sec 16)
When consent is not given under fraud
(Sec 17)
When it is not by misrepresentation
( Sec 18)
When there is no mistake between the
parties( It can be only when there is a
Mistake of fact and not mistake of Law
(Secs 20-22)
Coercion –Sec 15
Act Prohibited under Indian Penal Code or
Detention of property – Duress in English Law
Committing or threatening to commit any act under
the Indian Penal Code

Unlawful detaining, threatening to detain, prejudice

to any person or property

So that a person enter into an agreement

E.g.. Threat to commit suicide, agree on some
things so as to avoid prosecution
Voidable
Undue Influence -Sec 16
Some relations between the parties
That relationship is of a dominating nature- or
where the person can use his will due to such
position and
Obtain an unfair advantage over the other party
Real and apparent authority-
or a fiduciary relationship or
the mental capacity of the party is temporarily or
permanently affected due to age, illness, mental
or bodily illness.
Voidable
Income Tax authority or a Magistrate
Doctor Patient, Creditor Debtor, Teacher
-Pupil
Guardian and Child- It should have a trust
and confidence relations so as not to exploit
E.g. Solicitor buying the property or selling
his property by under valuing or overvaluing
Mental Distress but not statutory compulsion
or urgent need of money
Unconscionable Bargains not allowed
Contracts with the pardanashin lady
Unequal Bargain, Strindhan given as a
security by the wife when the husband is in
debt
Remedy-Recission of Contract allowed–Sec
19 A
Fraud- Sec 17
Act committed by a person, or his agent or under
his connivance etc with the intent to deceive
another party or his agent to induce him to enter
into contract
Assertion of Facts without belief in their truth
( Derry V Peek)
Active concealment-
> But mere silence not fraud------
> Until there is a duty to speak ,
> when silence is deceptive,
> change the circumstances,
> half truth
Promise made without intention to perform
Any other act which will deceive or declared to be
fraud------------------ Voidable
Misrepresentation- Sec 18
Positive assertion- Not warranted of the person
making- not true, though he believes to be true
e.g. car has traveled only 1000 KM,
Mr. Kapil Dev will become the director. But it will
be untrue.

Any breach of duty- without the intention to

deceive and gives an advantage (gaining) to the
person committing it or any other person claiming
under him ( constructive fraud)
e.g. Conceal the content of the document
Misleading others to his or someone else’s
prejudice.
By Inducing mistake about subject matter,
suppression of vital facts which are material facts
---but not expression of opinion– change of
circumstances to be stated,

Causing however innocent a party to agreement

might have been ------to make mistake as to the
substance of the thing which is the subject matter
of the agreement

In all the above instances the consent must have

been given by misrepresentation, which has
caused to agree to give consent to the contract-
Voidable
 Mistake- Sections 20 -22
When parties are under the mistake as to
the matter of fact essential to agreement –
may be as to the
b) Mistake as to Subject matter
Horse dead while the parties are
agreeing,
ship is sunk while contracting
Different subject matter in mind
( Tarem Singh v. Sukhminder Singh case , (bhigha or
Kanal of land)
b) Mistake as to the Identity of the Person
Mistake as to the identity caused by Fraud
Cases- (Cundy V Lindsay , Philip V Brooks Ltd)
Mistake as to the Nature of Promise
e.g.. Thinking that A is signing a power of
attorney, while it was a gift deed
Mistakenly signing wrong documents
Consequences
Mistake of the both the parties- Void-
Bilateral Mistake- perished goods
signing a separation deed , when actually not
married( Galloway V Galloway)
Unilateral Mistake- Not just because it is
mistake of one party
Mistake of Law – Not voidable ( Law
force in India)
Mistake of fact – only allowed