Introduction to Free Consent
According to Section 13, ” two or more persons are said to be consented when they agree upon the same thing in the same sense (Consensus-ad-idem). According to Section 14, consent is said to be free if it is not caused by coercion, undue influence, fraud, misrepresentation and mistake.
Elements vitiating free Consent
- Coercion (Section 15) : “Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code under(45,1860), 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. For example, “A” threatens to shoot “B” if he doesn’t release him from a debt which he owes to “B”. “B” releases “A” under threat. Since the release has been brought about by coercion, such release is not valid.
- Undue influence (Section 16): “Where a person who is in a position to dominate the will of another enters into a contract with him and the transaction appears on the face of it, or on the evidence, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in the position to dominate the will of the other.”(Section 16(2)) States that “A person is deemed to be in a position to dominate the will of another;
· Where he holds a real or apparent authority over the other. For example, an employer may be deemed to be having authority over his employee. an income tax authority over to the asessee.
· Where he stands in a fiduciary relationship to other, For example, the relationship of Solicitor with his client, spiritual advisor and devotee.
· Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by the reason of age, illness or mental or bodily distress”
- Fraud (Section 17) : “Fraud” means and includes any act or concealment of material fact or misrepresentation made knowingly by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract. Mere silence is not fraud. a contracting party is not obliged to disclose each and everything to the other party. There are two exceptions where even mere silence may be fraud, one is where there is a duty to speak, then keeping silence is fraud. or when silence is in itself equivalent to speech, such silence is fraud.
- Misrepresentation (Section 18) : “causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement”.
- Mistake of fact (Section 20) : “Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void”. A party cannot be allowed to get any relief on the ground that he had done some particular act in ignorance of law. Mistake may be bilateral mistake where both parties to an agreement are under mistake as to the matter of fact. The mistake must relate to a matter of fact essential to the agreement.