Q.What is consent? Whe4n is consent said to be free under Indian contract Act?

Ans . The formation of a valid contract requires the consent of parties. Also, the consent is
required to be free consent. Agreement without free consent are voidable

What is consent?

Section 13 of the Indian Contract Act, 1872 defines consent. It says that, " two or more
persons are said to consent when they agree upon the same thing in the same sense."

Above definitions show that agreeing upon the same thing in the same sense is consent, i.e.
there is no difference between parties in their mind in respect of identity of parties, subject
matter and nature of contract. It is also called consensus and item.

Hala Devi v/s Shanti Mazumdar

An illiterate woman executed a document favouring her nephew with the understanding that
the document is in respect of that administration of land but, actually that document was an
instrument for gift. The woman never intended to execute an instrument for a gift nor the
document was read and explained to her. Court held it unenforceable because there was a
difference in understanding between the two parties. Both were not agreed upon the same
thing in the same sense.

Free consent

As we have seen above a valid contract requires consent and such consent should be free
consent. Section 14 of Indian Contract Act. 1872 defines Free Consent. According to it,
consent is said to be free when it not caused by

(1) coercion under section 15:

(2) Undue influence under section 16
(3) Fraud under section 17:
(4) Misrepresentation under section 18:
(5) Mistake:

In other words, consent obtained by following is not free consent

(a) Coercion.
(b) Undue influence;
(c) Fraud:
(d) Misrepresentation:
(c) Mistake.

Coercion, undue influence, fraud, misrepresentation and mistake are such elements by
which the consent vitiates.
Dev Anand v/s Khote Allahabad High Court that consent given un coercion, undue
influence, fraud, misrepresentation or mistake is vitiated so the contract is voidable
Maria Anduria Apollinia Gonsalvez, E. Mesivta v/s Sripad Vishnu Kamath such consent
was not considered defective where sale deed was written in the language understood t
both, son of the seller was present at the time of execution of sale deed and the seller had
accepted advance amount against sale

(1) Coercion- the first element defecting the concept is coercion. Coercion means the
unlawful detaining, or threatening to detain any property to the prejudice of any person. A
consent obtained undue coercion by such an act or threating cannot be said to be a free
consent.

Rangnayakamma v/s Alwar Chetty

A young girl of 13 years whose husband was just died, was forced to give her consent to
adopt a boy to her husband with a threatring that in case she will not give such consent, the
dead body of her husband will not be allowed to be removed for funeral. Such adoption was
not considered valid because the consent for that was obtained undue coercion

(2) Undue influence- a consent is said to be under undue influence when the relations
subsisting between parties are such that one of the parties is in position to dominate the will
of others and used that position to obtain unfair advantage over the other. Certain persons
have relations which are in position to dominate the will of others, like- husband-wife,
father-son, master-servant, landowner-tenant, advocate client, doctor-patient, etc. a simple
village woman. Pardanashin Lady, an illiterate woman are also included in this category

In such cases, the person in position to dominate has to prove that the consent obtained by
him was fre consent, i.e. free from undue influence. Habib Khan v/s Walsula Devi

(3) Fraud the third element defecting the consent is fraud. The definition of fraud is simple-
"Any person with the intention of deceive, conceals any true fact, to obtain improper
advantage is 'Fraud'.

Section 17 of the Indian Contract Act, includes to essentials to prove that an act is a fraud; A
person should make a false statement having the knowledge that the facts are false.
There should be a wrongful intention to deceive the other party.

Derry v/s Peek

Justice Herschell defines Fraud as "Where any person makes statement for truth of such
fact of which he himself does not believe it to be true or has no reasonable ground for such
statement which causes him loss, then it is fraud and the sufferer person becomes entitled
for suit fo decievement

Example-

'A' sell his land to 'B'. 'A' concealing this fact makes a contract with 'C to sell that land, this is
fraud due to active concealment

“Fraud is proved when it is shown that a false representation is being made-

 ● Knowingly
● Without belief in its truth
● Recklessly careless whether it be true or false.

Whether Silence is Fraud?

Generally, keeping silence is not fraud. But where it is the duty of person to speak, there if
he keeps silenc then it shall be fraud.

Case Law

Smith v/s Hughes

it was held that where there is a legal liability over seller to state facts related to sale, there
his silence will be considered as fraud.
But, where there is no legal duty to speak, there silence will not be considered as fraud.

(4)Misrepresentation- the fourth element defecting the free consent is misrepresentation. It

is somewhat different from fraud.

Section 18 defines Misrepresentation "misrepresentation means and includes-

● the positive assertion, in a manner not warranted by the information of the person
making it, of th which is not true through he believes it to be true.
● Any breach of duty which, without an intent to deceive, going an advantage to the
person committi it, or anyone claiming under him, by misleading another to his
prejudice or to the prejudice of anyon claiming under him.
● Causing however innocently a party to an argument to make a mistake as to the
substance of the thi which is the subject of the agreement.

In other words, Any person making a fall representation of any fact which lie knows to be
true, misrepresentation. Misrepresentation does not include the intention of deceiving or
fraud.

Difference between Fraud and Misrepresentation-

Fraud

1. Fraud contains intention to deceive.

2. The facts are altered with the intention to deceive the other
person.
3. The defaulter person has the know-ledge of truth.
4. Fraud is a type of tort so it is punishable.
5. Contract by fraud can be rescinded and compensation can
be demanded.
6. The defaulter person cannot take the defence that the victim
person as plaintiff could have find out the truth
Misrepresentation

1. It does not contain any such intention.

2. No such thing in misrepresentation. Any fact is presented to
others as such whereas it came out to be true.
3. The defaulter person has no know-ledge of truth.
4. It does not come under tort
5. Contract by misrepresentation can only be rescinded, but
compensa-tion cannot be demanded.
6. Such defence could be availed

(5) Mistake the fifth element defecting the consent is Mistake. Contract by mistake are either
void or voidable. Mistake is of two types-

(i) Mistake of facts; and

(ii) Mistake of law.

Section 21 of the Contract Act says that mistake of law of country, is not excusable, i.e. of
any contract is done under a mistake of law being followed in India then such contract shall
not be voidable, but if contract is under a mistake of foreign law then it shall be void.

Under this heading, two types of mistakes can be kept, i.e. following mistakes shall make, a
contract void.

(i) Mistake of foreign law; and

(ii) Mistake as to individual rights.

Case Law

Cooper vs Phinns

In this case plaintiff obtained a lease from defendant over a fishery. The plaintiff already had
a life interest over that fishery and the defendant had no right, but the plaintiff was unaware
of his right. Plaintiff instituted a suit for the cancellation of lease. Court held that the mistake
related to general ownership shall have the same effect what the mistake of fact would have.

Mistake of fact is not excusable, i.e. if the parties to contract have contracted under a
mistake of fact whicl is substantive to the agreement, then such contract shall be void.

Example

A agrees to buy a horse from 'B'. at the time of agreement, horse had already died but both
the parties had no knowledge of it. Such an agreement is void.

The following points are important in respect of mistake of fact-

(i) Mistake must be mutual;

(ii) Mistake must be related to any substantive fact, like
 mistake as to identity of subject matter, identit of nature of
transaction, etc.
(iii) Mistake must relate to present or existing fact.

Case law

Haji Abdul Rehman Allarakhia v/s Bombay and Persia Stean Navigation Co.

In this case plaintiff after 15 days from Haj chartered a steamer which was se sail from
Jedda on 10th August to Bombay. Later, it was found that 15 day after Haj was 19th July and
no 10th August. This was considered a mistake of one party. Cundy v/s Lindsay [(1878( 3
A.C. 459].