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free consent of contract part 1

  FREE CONSENT OF CONTRACT 

PART -1

                                                          Name: Pari dharewa

                                       According to Section 13 of the Indian Contract Act, 1872 consent means when both parties agree to a thing in the same sense of mind or unison of mind.

  • The principle of consensus-ad-idem

  • Illustration

“A” and “B” are the two parties in a contract. It was seen that there was some crisis and “A” had put a plan forward to solve it. “B” after being made aware of this fact and analysed that it was the perfect solution, agreed to it. In this case, both parties showed their consent.


Elements of free consent

  • Consent is considered to be free consent when the following factors are satisfied:

  • It should be free from coercion.

  • The contract should not be done under the pressure of undue influence.

  • The contract should be done without fraud.

  • The contract should not be made through misrepresentation.

  • The contract should not be made by mistake.

Importance of free consent

  • The contract made out of free consent protects the validity and enforceability of an agreement.

  • It provides a protecting shield to the parties from coercion, undue influence, misrepresentation, fraud, and mistake

  • It provides the parties to withstand their autonomous power to frame their running policy or principle.

  • The principle of consensus-ad-idem is followed.

Difference between consent and free consent

Basis 

Consent 

Free consent

Meaning 

When both the parties agree to a thing in the same sense of mind or unison of mind, then the agreement is considered to be done with consent.

When an agreement is done with consent and is free from coercion, fraud, misrepresentation, undue influence, and mistake. Then the agreement is considered to be done with free consent.

Essentials 

Both parties must be entering into the agreement in the same sense of mind.

Both parties must be entering into the agreement should be agreeing to the same thing.

Consent should be free from:

  • Coercion

  • fraud 

  • misrepresentation 

  • undue influence 

  • mistake

Voidability 

When there is a lack of consent, the contract would be void.

When there is no free consent, then the voidability of the contract depends on the option of the aggrieved party.

Mistake in the free consent

A mistake is described as an element, which when occurs in a contract makes it void. There are two types of mistakes, which occurs in a contract

Unilateral Mistake

A mistake is said to be unilateral when one party is mistaken in the agreement.

Bilateral Mistake

Mutual mistake

A mistake is said to be mutual when both parties misunderstood each other. Thus it shows that there is a breach in the principle of consensus-ad-idem in the contracts and the contract is to be considered as void.

Illustration, “A” made an offer to “B” to sell his scooter. “A” intended to sell his 3G scooter but “B” believed that “A” would sell his 4G scooter. Thus there was no proper communication and the fact was mistaken. It would amount to an effective agreement.

Common mistake

Section 20 of the Indian Contract Act, 1872 lays down the provision for common mistakes. A contract arising out of common mistake is considered to be void. This type of mistake is possessed by both the parties but this mistake is not the result of mutual mistake, it arises individually.

Free consent examples

Illustration 

  1. “A” agrees to sell his land to “B”. “A” has 10 lands in different places and he wanted to sell the land in the west direction but “B” wanted the land in the east part. In this case, it is seen that there is no meeting of minds and the principle of consensus-ad-idem is violated. Thus the agreement would be considered void.

  2. “A” an old man who stays with “B”, his nephew and he takes care of him. “B” demanded to get the property of “A” as he was taking care of him and forces him to sign the papers. In this case, “A” is under undue influence.

Case laws

In the case of Solle v Butcher[1], it was seen that both the parties entered into the contract of lease of Flat. Both the parties believed that the identity of the flat has changed thus the maximum rent which was GBP 140 per annum has also changed. But later the court held that there was no change of identity thus, it was held that there was a mutual mistake of fact and thus the contract was declared to be void.

                                       

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