Free Consent

Basic Concept for Free Consent

1. FREE CONSENT MICHEAL SOLOMON L

2. CONSENT – Meaning Consent of the parties means that there is perfect identity of mind of both the parties . That is , there is no MISUNDERSTANDING between the parities regarding the subject matter of the contract. It means the consent which is obtained by the FREE will of the parties and neither party was FORCED or INDUCED to give his consent.

3. CONSENT – Definition According to Sec 13 of the Indian Contract Act Consent is defined as “ Two or more persons are said to consent when they AGREE upon the SAME THING in the SAME SENSE. Sec 14 of the Indian Contract Act defines as “Consent is said to be free when it is not caused by : Coercion Undue influence Fraud Mis - representation Mistake

4. COERCION – Meaning & Definition COERCION means forcibly compelling a person to enter into a contract. According to Sec 15 of the Indian Contract Act, Coercion is defined as “Coercion is the committing or threatening to commit any act forbidden by the Indian Penal Code ( IPC) or the unlawful detaining 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”

5. Essentials for a valid Coercion The coercion must be the committing of any act forbidden by the IPC. It must be the threatening to commit any act forbidden by the IPC. It must be the unlawful detaining or threatening to detain any property. It must be done with the intention of causing the other party to enter into contract. IPC may or may not be in force where the coercion is committed. The act of coercion may be initiated by any person. Coercion may be by way of an attempt to commit suicide. Coercion may not be by way of threat to file a suit.

6. UNDUE INFLUENCE – Meaning & Definition It means the UNFAIR use of one’s superior power in order to obtain the consent of a person who is in a weaker position. Sec 16(1) of the Indian Contract Act defines undue influence as follows “A Contract is said to be induced by ‘Undue Influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other”

7. Three essential parts of Undue Influence one party must be in a position to dominate the will of the other. Dominant party must use his superior position to obtain an undue advantage over the weaker party. The dominant party must have obtained an unfair advantage over the weaker party.

8. Relationship where undue influence is presumed Advocate and Client Doctor and patient Religious guru and Disciple Parent and Child Guardian and Ward Trustee and Beneficiary Fiance and fiancée Master and Servant Income Tax officers and Assessee

9. Difference – Coercion & Undue Influence

10. FRAUD Fraud means an intentional , deliberate or wilful misstatement of facts which are material for the formation of a contract. According to Sec 17 of the Indian Contract Act fraud defines as “ Fraud means and includes any of the following acts committed by a person to a contract or with his connivance or by his agent, with intent to deceive another party thereto or his agent or to induce him to enter into a contract.

11. Acts which constitute fraud False statements of facts Active concealment of fact Promise made without any intention of performing it Any act fitted to deceive Such act or omission as the law specially declares to be fraudulent.

12. MERE SILENCE IS NOT FRAUD Exceptions. Where there is a duty of the person keeping silence to speak Where silence is equivalent to speech Half truth

13. MISREPRESENTATION Misrepresentation may be defined as an innocent misstatement of facts which are material for the contract. It’s a false representation which is made innocently, without any intention to deceive the other party.

14. Essentials and Legal Rules for Misrepresentation The misrepresentation must be of material facts. The misrepresentation must be false but the person making it honestly believes it be true The misrepresentation must induce the other party to enter into a contract The false statement which amounts to misrepresentation must have been addressed by the person making it to the party who is misled by it It must be made without any intention to cheat the other party It need not be made directly to the plaintiff.

15. Fraud VS Misrepresentation

16. MISTAKE

17. MISTAKE Mistake may be defined as incorrect belief about something. It is infact an incorrect belief which leads one party to misunderstand the other, Types of mistake Mistake of FACT Mistake of law

18. Mistake of facts The mistake of facts can be classified into two Bilateral mistake Unilateral mistake

19. Bilateral mistake Bilateral mistake may be defined as a mistake in which both the parties to an agreement are confused about the facts which are essential to the agreement . It is also called COMMON MISTAKE or MUTUAL MISTAKE

20. UNILATERAL MISTAKE The term Unilateral Mistake may be defined as a mistake in which only ONE of the parties to an agreement is confused about the facts which are essential to the agreement.

21. Mistake of LAW It may be classified into two types Mistake of Indian Law Mistake of Foreign Law IGNORANCE OF LAW IS NO EXCUSE

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