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Discuss Free Consent in Detail Under the Indian Contract Act, 1872

Discuss Free Consent in Detail Under the Indian Contract Act, 1872

All Agreements are contracts if they are made by free consent of the parties , In other words , an agreement is valid only when it is the result of the free consent of the parties to it.

Consenus ad idem  = Same thing in the Same Sense

  • According to Section 13 of the Indian contract Act , 1872

Free Consent –

  • “Two or More Persons are said to consent when they agree upon the same thing in the same sense.”
    • According to Section 14 of the Indian contract Act , 1872

Free Consent –

Consent is said to be free when it is not caused by :

  • Coercion , as defined in section 15 , or
  • Undue influence, as defined in section 16 , or
  • Fraud, as defined in section 17 , or
  • Misrepresentation , as defined in section , 18 or
  • Mistake subject to provisions of section 20, 21 and 22

 

  • Ingredients of Free Consent
  • Coercion : (Definition)
    • According to Section 15 of the Indian Contract Act , 1872
    • Coercion is –
      • The committing or threatening to commit
      • Any act forbidden by the Indian Penal Code or
      • Unlawfully detaining or
      • Threatening to detain any property
      • To the prejudice of any person whatever
      • With intention of causing any person to enter in to an agreement.
    • Coercion : Ingredients :
      • By Committing of any act forbidden by Indian Penal Code
      • By threatening to commit any act forbidden by Indian Peal Code
      • By the unlawful detaining of property
      • By threatening to detain any property
      • Threat to commit to suicide
    • Undue Influence
      • One party is in a position to dominate the will of the others
      • The other party is compelled to enter in to an agreement against his will as a result of unfair advantage
      • According to section 16(1) : 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 position to obtain an unfair advantage over the others.
      • Ingredients / Presumption
        • One party is in a position to dominate the will of the others.
        • Dominant party obtains , an unfair advantage
      • Relationship of Trust :
        • Holds real or apparent authority (master and servant)
        • Stands in a fiduciary relation (Father and son)
        • Mental capacity affected (Doctor & Patient)
        • Burden of Proof
      • Pardanashin Women
      • Is affected by undue influence / presumed that she is under influence
      • Totally secluded from ordinary social life
      • Living alone
      • Who is not coming in public place
      • Who is not coming in court evidence
      • Court has given a special protection
      • Third party has to prove that she is not pardanasin women.
    • Fraud :
      • Misrepresentation of Facts :
        • Intentional = Fraud
        • Un Intentional = Misrepresentation
      • The Term Fraud includes all acts committed by a person with a view to deceiving another person.
      • Deceive Means: to induce a person to believe that a thing is true which is false.
      • According to Section 17 of the Indian contract Act , 1872 , “ Fraud means : it includes any of the following acts committed by a party to a contract, or with his connivance or by his agent , with intent to deceive any party there to or his agent, or to induce him to enter into the contract.
        • The suggestion , as a fact , of that which is not true by one who does not believe it to be true
        • The active concealment of a fact by one having knowledge or belief of the fact
        • A promise made without any intention of performing it.
        • Any other fact fitted to deceive
        • Any such act or mission as the law specifically declared to be fraudulent.
      • Ingredients of Fraud :
        • Parties : (Self , Agent , Connivance)
        • Fraud by a stranger (act by third Party)
        • A promise made without performing intention
        • Must have committed with the intention
        • The other party must have suffered loss
        • Can silence be fraudulent? (Mere silence is not fraud)
      • Misrepresentation
        • According to section 18 of the Indian Contract Act, 1872 Misrepresentation is a false statement which the person making it honestly believes it to e true which at any rate , he does not know to be false
        • Ingredients :
          • Negative assertion
          • Breach of duty
          • Innocent Mistake
          • Contracts of Uberrimae Fidei
            • Uberrimae Fidei contracts are those contracts where law imposes upon the parties the duty of making full disclosure of all material facts. Any party who has information in his possession concerning the subject matter of the contracts which is likely to affect the willingness of the other party to enter into contract, is bound to disclose the same.
            • Insurance, Family Settlements, Contract to take shares , Contract to marry.

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