CONSENT

A contract without free consent is voidable contract.

MEANING OF CONSENT

Two or more persons are said to consent when they agree upon the same thing in the same sense. This means that there should be perfect identity of mind, regarding the subject matter of the contract.

Flaw in consent Coercion Undue influence Misrepresentation Mistake Fraudulent or willful Innocent or Unintentional Mistake of fact Mistake of law .

Held the deed was void and inoperative. . nor was the deed ever read or explained to her.EXAMPLE  An illiterate women executed a deed of gift in favor of her nephew under the impression that she was executing a deed authorizing her nephew to manage her lands. The evidence showed that the woman never intended to execute such a deed of gift.

 Consent is said to be free when it is not caused by any of the following : (a) Coercion (b) Undue influence (c) Misrepresentation (e) Mistake  .FREE CONSENT To make a contract valid not only consent is necessary but the consent should also be free.

or the unlawful detaining or threatening to detain any property to the prejudice of any person. . whatsoever with the intension of causing any person to enter into an agreement .Coercion  Coercion is committing or threatening to commit any act forbidden by the LAW.

An example of Coercion .

Is Threat to commit suicide coercion?   Even a threat to commit suicide is coercion even though it is not punishable under the LAW . Example: A man by giving a threat to commit suicide induces his wife and son to execute a deed in favour of him in respect of certain property and they execute. Held that the consent of the wife and son has obtained through coercion. .

the contract becomes voidable at the option of the party . .whose consent is so obtained The burden of proving that the consent was obtained through coercion shall be upon the party who wants to set aside the contract on the plea of contract.Effect of coercion   When the consent of a party to an agreement is obtained by coercion .

A railway company refuses to deliver up certain goods to the consignee. It will be a contract voidable at the option of Anjum since his consent was obtained by coercion. He is entitled to recover so much of the charge as was illegally excessive. The consignee pays the sum charged in order to obtain the goods.Example of effect of coercion   Anjum executes a transfer bond for the house under fear of assault.. except upon the payment of an illegal charge for carriage. .

A contract is said to be affected by undue influence when: The relations subsisting between the parties are such that one of the parties is in a position to dominate the will of other.UNDUE INFLUENCE    Undue influence is the improper use of any power possessed over the mind of the contracting party.2. . Uses that position to obtain an unfair advantage over the other.

Example of undue influence By operation you just execute a deed of giving your Whole property to me .

Following are the parties that can be affected by undue influence      Doctor and patient Lawyer and client Guardian and ward Trustee and beneficiary Teacher and student .

Difference between coercion and undue influence Coercion The consent of the aggrieved party is taken by committing or threatening to commit an act forbidden by Indian penal code. Moral force is used in undue influence Some sort of relationship must exist between the two parties to the contract Relationship between the promisor and the promisee is not necessary . Physical force is exercised Undue Influence The consent of the aggrieved party is obtained by dominating the party by taking an unfair advantage of his position.

Fraud Section 17 .3.

Intentional misrepresentation has been termed as Fraud and innocent misrepresentation has been termed simply as ‘misrepresentation’ in the contract act .Meaning of fraud  Misrepresentation of facts may be intentional or innocent.

(c) Any other act fitted to deceive (d) A promise made without any intention of performing it  .Definition under law Fraud means and includes any of the following acts  Committed by a party to a contract or by any one with his connivance or by his agent with intent to deceive another party thereto or his agent or to induce him to enter into contract: (a) A suggestion as to fact of that which is not true by one who does not believe it to be true (b) An active concealment of a fact by one having knowledge or belief of the fact.

it is the duty of the Person keeping silence to speak (b)Silence in itself will be equivalent To speech (c ) change of circumstances (d) Duty to speak-where contracting Party responses trust and confidence .Concealment by mere silence is not fraud Mere silence without any legal Duty to speak will not amount To fraud except where (a) The circumstances of the case Are such that regard being Had to them .

H kept quiet about his disqualification to drive a car. S regarded driving as an essential part of H’s duties but he did not specifically ask H if he is qualified to drive a car.EXAMPLE H a commercial traveller. But it was held that H was under no duty to volunteer the information and there was no misrepresentation. S contended that H’s silence is misrepresentation. obtained an employment with S. .

Essentials of fraud    The act must have been committed by a party to the contract or with his connivance or by agent .It should not have been committed by a stranger The act must have been committed with the intention of inducing the deceived party to act upon it-It implies that the assertion should be such that it would necessarily influence and induce other party to act Plaintiff must have suffered .

.Effect of Fraud    The party whose consent to the contract is obtained by fraud can exercised any of the following rights: He may avoid the contract and may (i) ask for the damages suffered because of the non fulfillment of the contract He may insist for the performance of the contract .

to B. A has private information of a change in prices which would affect B's willingness to proceed with the contract. Here. . A is not bound to inform B. A says nothing to B about the horse's unsoundness. by auction. enter upon a contract. b) B is A's daughter and has just come of age. the relation between the parties would make it A's duty to tell B if the horse. This is not fraud in A. a horse which A knows to be unsound. is unsound. being traders. c) A and B.Examples of fraud a) A sells.

Misrepresentation .

Misrepresentation    Misrepresentation is a false representation made innocently without any intention of deceiving the other party .It may include two things: (a) wrong statement of a material fact not known to be false (b) Non-disclosure of facts where there is a legal duty to disclose without intention to deceive .

Difference between fraud and misrepresentation Misrepresentation There is no intention to deceive or to gain any undue advantage fraud In fraud the false statement is made deliberately with a clear intention of deceiving the other party It makes the other contract In fraud the injured party only voidable at the option besides avoiding the of the party whose consent contract may also claim the has been so caused damages. .

Mistake  (a) (b) Mistake are of two type Mistake of law Mistake of fact .

Mistake of fact   Bilateral mistake Unilateral mistake are two types of mistake of fact .

though neither party was aware about this fact.It turns out that the horse was dead at the time of the agreement .g.Bilateral mistake     The mistake shall be termed as bilateral mistake of fact only when both of the following conditions are satisfied (a) it should be committed by both the parties (b) it should relate to a matter of fact essential to the agreement. .-A agrees to buy certain horse from B . E. The agreement is void.

. the contract is voidable .Infact wheat offered were new. It was held that A could not avoid the contract on the ground that he had a mistaken impression as to the oldness of wheat.unilateral mistake do not affect the validity of contract unless they concern some fundamental Example: A agreed to buy certain wheat from B believing that they were old.Unilateral mistake   One party to a contract is under a mistake of fact.

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