Two or more persons are said to consent when they agree upon the same thing in the same sense.” Explain the statement and state when the consent is not free consent.

Question: “Two or more persons are said to consent when they agree upon the same thing in the same sense.” Explain the statement and state when the consent is not free consent. [BJS 1991]

Find the answer to the mains question only on Legal Bites. [Two or more persons are said to consent when they agree upon the same thing in the same sense.” Explain the statement and state when the consent is not free consent.]

Answer

As per Section 13 of The Indian Contract Act, 1872 consent is said to have been given when two or more persons are said to consent when they agree upon the same thing in the same sense. An agreement upon the same thing in the same sense is known as true consent or “consensus ad idem” and is at the root of every contract. For example, a mistake of identity will prevent consent in the sense of an agreement of two persons in the same sense.

The above statement seems to have been picked up from a passage in the judgment of Lord Hannen in Smith v. Hughes [(1871) LR6 QB 597(DC)] “It is essential to the creation of a contract that both parties should agree to the same thing in the same sense”. Thus if two persons enter into an apparent contract concerning a particular person or ship, and it turns out that each of them, misled by a similarity of name, had a different person or ship in mind, no contract would exist between them:

If a thing is not understood by the parties in the same sense, the agreement would be invalidated at the inception stage itself even if the communication gap is discovered at a later stage, Tarsem Singh v. Sukhminder Singh, [(1998) 3 SCC 471].

This means parties that are entering into a contract should do it with their will without the external factors or forces. Section-14 of The Indian Contract Act, 1872 defines contract entered with free consent is a valid contract and if affected by some other factors then, would believe a contract invalid.

The factors are defined by The Indian Contract, 1872 which vitiates a valid consent–

• Coercion: It is defined under Section 15 of the Indian Contract Act, 1872 which means committing any act which is forbidden by law defined under the Indian Penal Code or unlawful to confine of property, or frightening to commit such acts. The act should be harmful to the other party and some legal action may arise out of it.

E.g.: – ‘A’ husband forces her wife that if she will not sign the property papers, he will throw acid on her. This is amounting to coercion and a contract signed under the coercion amounts to an invalid contract.

• Undue influence: It is defined under Section 16 of the Indian Contract Act, 1872 which means one party uses its dominant position over the party and tries to obtain an advantage out of it by influencing. Such examples are the relationship of employer-employee, principle-agent relationship. Furthermore, it says that the person who is in the position to dominate the will of the other party present has to prove that the contract entered by the parties was not by the undue influence. Hence, it defines upon whom the burden of proof will fall.

E.g.: – A doctor is in the dominant position with the relation to the patient, here, the doctor influences the patient to sign papers for the operation.

• Fraud: It is defined under Section 17 of the Indian Contract Act, 1872 which means when the terms which are presented by one party in front of the other party is to cause damage, with the ill- will and to gain advantage out of it. Presenting the false statement, hiding any fact, fake promises made without the intention to perform such act, act done to deceive the other party- such acts will constitute fraud if done with the intention to doing it so.

E.g.: – ‘A’ is selling his refrigerator to ‘B’ presenting the fake facts that its freezer is working well and have sufficient gas but which was all wrong. Hence, here it’s an invalid contract because ‘A’ is gaining an advantage by the method of fraud.

• Misrepresentation: It is defined under Section 18 of The Indian Contract Act, 1872 which means presenting the false representation of facts without the wrong intentions or to deceive the other party. In misrepresentation, the party is innocent and has done the act without knowing it.

E.g.: – ‘A’ asked ‘B’ if he had faced any issues with the water pipeline system in the basement, and he said that he has never faced any issues regarding the same, absolutely not. A bought the house after considering the fact, and within the moving in of ‘A’, the basement was flooded with water due to the rainy season and ‘A’ suffered a lot of damages.

• Mistake: Mistake of Fact or Mistake of Law is defined under Section 20 and 21 of The Indian Contract Act, 1872 If any mistake (fact or law) done by either or both the parties will lead to an invalid contract.

E.g.: – when ‘X’ wants to enter into a contract with ‘A’ for selling the car but mistakenly enters into a contract with ‘D’ believing him to be ‘A’ and sells him the car. Hence, it’s become an invalid contract.

---

Law of Contract Mains Questions Series: Important Questions for Judiciary, APO & University Exams

1. Law of Contract Mains Questions Series Part-I
2. Law of Contract Mains Questions Series Part-II
3. Law of Contract Mains Questions Series Part-III
4. Law of Contract Mains Questions Series Part-IV
5. Law of Contract Mains Questions Series Part-V
6. Law of Contract Mains Questions Series Part-VI
7. Law of Contract Mains Questions Series Part-VII
8. Law of Contract Mains Questions Series Part-VIII
9. Law of Contract Mains Questions Series Part-IX
10. Law of Contract Mains Questions Series Part-X