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Importance of free consent in a contract

Updated: Dec 13, 2020

B. Sandeep Harish

III year of B.A.,LLB

The Central Law College

Salem








Introduction:


According to the Indian Contract Act 1872, when an agreement and a promise enforced by law becomes a ‘Contract’. All contracts are agreements but not all agreements are contracts. Section 10 of the Indian Contract Act deals with ‘what agreements are contracts’ if they are made by the competent to contract, free consent of parties, for a lawful consideration and with a lawful object and are not expressly declared to be void by law. Consent is defined as ‘when two or more persons agree upon the same thing in the same sense’. The parties to the contract should have agreed upon the subject matter at the same time in the same sense. There should be a ‘consensus ad-idem’ which means ‘identity of mind between the parties’. When there is no consent or error in consent, there is no contract. The person should give valid consent, at the time of making the contract; the person satisfied the following things:

1. Major

2. Sound mind

3. Not disqualified by any law

These are the main important qualifications for entering into the contract. And the contract must be free consent of the parties. Free consent is mandatory for the contract. These are the importance of a valid contract.

Free consent:


Section 14 of the Indian Contract Act deals with free consent, free consent is an essential thing for a valid contract. The contract is said to be void or invalid, without free consent. Consent is said to be free when it is not caused by:

1. Coercion

2. Undue influence

3. Misrepresentation

4. Fraud

5. Mistake

Coercion:


When a person is compelled to enter into a contract by the use of force by the other party or under threat, coercion is said to be employed. Section 15 of the Indian Contract Act deals with coercion, a person committing is threatening to commit any act forbidden by the Indian Penal Code or the unlawful detaining or threatening to detain any property to the prejudice of any person to cause the person to agree. It is immaterial whether the Indian penal code is or is not in force in the place where the coercion is employed. It may be directed not necessarily against the contracting party but anybody.

Undue influence:


Section 16 of the Indian Contract Act deals with the ‘undue influence’ if the relations between the parties are such that one of the parties is in a position to dominate the will of the users and other that position to obtain an unfair advantage over the other. A person dominates the will of another. If he holds apparent or real authority over the other or if he stands in a fiduciary relation to the other, or if he makes a contract with a person whose mental capacity is temporarily or permanently affected because of age, mental or illness or bodily distress, when a person who is in a position to dominate the will of another enters into a contract with him and the transaction appears to be unconscionable, then the burden of proving that such contract was not induced by undue influence lies upon the person in a position to dominate the will of the other.

Misrepresentation:

Section 18 of the Indian Contract Act deals with the misrepresentation, when a person positively asserts a fact as true when his information does not warrant it to be so, though he believes it to be true when there is any breach of duty by a person which brings an advantage to the person committing it by misleading another to his disadvantage and when a party innocently causes the other party to the agreement to build a wrong as to the material of the thing which is the subject of the agreement.

Fraud:


Section 17 of the Indian Contract Act deals with the fraud, it includes the following acts which amount to fraud:

1. False representation or suggestion of a fact made with the knowledge of falsehood.

2. False representation or suggestion of a fact made without belief in its truth.

3. The false representation of a fact made recklessly without knowing whether it is true or not.

4. A promise made by a person without any intention of performing it.

5. Any act filled to deceive.

6. Any omission or act which the law specially declares to be fraudulent.

Mistake:


The mistake is defined as an ‘erroneous belief about something’. The mistake can be divided into two types,

1. Mistake of law

2. Mistake of fact

The mistake of law:

The mistake of law is not an excuse (ignorantia jur is non excusat). If a party has done a particular act in ignorance of the law, then it is not an excuse. The contract entered due to mistake of law is fully valid and enforceable. But if the mistake of law is due to the inducement of another person, then such contract becomes voidable.

The mistake of fact:

When the mistake is a matter of fact essential to the agreement, then it is called a mistake of fact. Generally, a mistake of fact is excusable but subject to exceptions (ignorantia of factum excusat) example; ‘A’ purchased B’s motor car which is lying in B’s garage. Unfortunately, without the knowledge of ‘B’, it was under repair. This is a mistake of fact, hence the agreement is void.

Conclusion:


Free consent is important to form a valid contract. The consent of the parties to the contract must be free and voluntary. The person who is entering into a contract shall not be under any quite pressure or delusion

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