An Introduction to the Topic - Free of Consent
As described in Section 13 of the Indian contract act, when a mutual understanding between two parties gets established in order to satisfy particular planning, can be termed as consent. People often get confused between consent and free of consent.
Consent is a contract between two or more parties to agree with a mutual commitment to achieve a desire or any other. Free consent in business law helps to understand all the legal rules which we need to follow in business.
What is Free Consent?
Let us define free consent as a contract based on Section 13 of the Indian contract act 1872 is, the meaning of free consent is an agreement made between two parties for the same purpose with the Union of thoughts. It is under the principle of consensus-ad-idem. It is the definition of free consent.
Free Consent Example
In order to understand more clearly, let us illustrate a case of free consent. Let us assume A and B are two parties, and 'A' had some financial crisis, so he wants to make a contract. After knowing all the information and after analyzing the situation, 'B' wants to accept the contract made by 'A'. Here the contract or agreement is made with the mutual consent of both the parties. This is nothing but the free consent of the contract.
Consent and Free Consent
Even though the meaning of both consent and free consent seems to be similar, slight differences are observed when we go through them in detail. Now we will see the differences between consent and free consent, where it varies and the importances etc. in detail as follows-
Elements:- The elements of consent are limited to a similar purpose as well as the same sense of mind. On the other hand, the elements of free consent should be free from fraud, coercion, undue influence, misrepresentations, and other mistakes too.
Void: The contract will be voidable if there is no consent. In contrast, the voidability of the contract will be decided by the aggrieved party in the absence of free consent.
Violating Factors of Free Consent
We have various factors that affect free consent, and it relates to the voidability of the contract. So both the parties participating in your contract should be aware of these factors and should be cautious for a free flow of the contract till it's the due date.
Consent is only considered as a mutual relationship between two parties whereas free of consent includes a mutual understanding as well as it's free from
Coercion: when a person unlawfully, threatens or forces a person via some forbidden acts, leads to coercion. It means the entry of either of the parties might be forceful or any of them committed to illegal activities or commitments against the Indian penal code etc. The effect of coercion leads to the cancellation of the entire contract after investigating thoroughly. The legal body will restrict the obligations of both parties in this case. If the commitment is done forcefully, clearly we can say that it is not free of consent.
Fraud: Another important factor of free consent is fraud. When a person provides false assertion, makes any promises in order to deceive a person or plans to get an advantage over the other party, then the act is considered as fraud. It involves the omission of promises made during the agreement, the false assertion of facts, false actions to cheat the other party, etc. and many more deceiving actions come under this fraud. According to Section 17 of the Indian law of contract, the other party has been given rights to claim for the deceived amounts as well as to revoke the entire contract and can make modifications where he got damaged.
Misinterpretation: Providing a false assertion or fake representation of the fact to the party or making unwarranted information to mislead the other party. According to Section 18 of the Indian law of contract, the misrepresentation is nothing but showing the false information at the beginning of the contract itself. The facts which are committed at the ground level may not be reliable, then it is considered as misrepresentation of the contract. Again here we have two kinds of misrepresentations-one is innocent misrepresentation and the other is a negligent misrepresentation.
Undue influence: when one of the parties has a dominating nature or uses its power to work against the will of the other party. Undue influence is another factor to violate free consent. It occurs when one of the other parties dominates the other party in any aspect. There is a chance of taking unfair advantage because of their dominating position on the other party. The principal behind undue influence is the doctrine of equity. The effect of undue influence leads to the voidability of the contract of free consent under Section 19 A. It requires valid proof to file a case on the dominating party. Generally, the undue influence affects the below parties -
Trustee and beneficiary
Husband and wife
Landlord and tenant
A person whose mental capacity is low
Old age
Doctor and patient
Tender age
Creditor and debtor
Real and apparent authority
Fiduciary relationship
Parent and child
Adult child and parent
Lawyer and client
Mistake: Mistakes can have so many impacts and it causes a lot of issues. It can be mutual or individual or can be of many types.
Pros and Cons of Free Consent
Pros of free consent: Free consent is considered as more reliable and flexible. The most important criteria the free consent satisfy can be listed below:
The contract made according to free of consent provides proper protection to the validity enforceability of an agreement.
It acts as a major protecting shield to the parties from various unavoidable circumstances.
It plays a major role to withstand the autonomous power and providing an unbreakable foundation to the running policy or principle.
Cons of free of consent: Although having a lot of advantages, free of consent also contains some kinds of mistakes too. These includes:
Unilateral mistake: when one side party makes a particular mistake, then it is termed a unilateral mistake.
Bilateral mistake: As the name suggests, when both the parties get involved in mistakes, then it is termed a bilateral mistake. This can be further classified into two types:
Mutual mistake: A mistake is said to be mutual when both parties misunderstood each other's policy forming a void, then it is termed as a mutual mistake.
Common mistake: Avoid that arises due to a common mistake in the contract is termed a common mistake. But this mistake is not mutual and is done individually.
FAQs on Free of Consent
1. What are the Features and Importance of Free Consent?
Free consent is an agreement made between two parties to attain the desire of any of the parties or both. The features of a perfect free consent are-
The contract should not have any mistakes.
The contract doesn't have any misrepresentations or frauds.
The contract should be away from undue influence.
The contract should be made free of consent.
The importance of free consent is,
It helps to protect the validity of the contract.
It prevents all kinds of malpractices.
It builds social relationships with mutual understanding.
It helps to develop jointly.
2. Distinguish between Coercion and Undue Influence.
Both coercion and undue influence are the voidability factors of free consent; each factor affects the contract differently. So, let's see how they differ in detail -
Coercion is a process of making unlawful things by one of the parties in the contract intentionally. In comparison, the undue influences are the process of dominating and utilizing more powers on the other party forcefully.
Coercion affects only a single partner of the contract, whereas the undue influence affects both the parties and both lead to the cancellation of the contract.
Coercion comes under criminal offence, and on the other hand, undue influence is not a criminal offence.
3. What do You Mean by Mistake in Free Consent?
The Mistake is another important factor of free consent to avoid the contract. The mistake might be anything that occurred in the agreement itself. The mistakes are of two types-one is unilateral, and the other is bilateral mistakes.
Unilateral Mistake: When a single party of a contract has mistaken the agreement knowingly or unknowingly it is considered as a unilateral mistake.
Bilateral Mistake: Again, it has two divisions, namely common mistake and mutual mistake. A common mistake is a mistake that generally occurred in the norms of an agreement without prior knowledge. At the same time, mutual mistakes are considered as the misunderstandings of both the parties regarding the agreement and made mistakes innocently. This can be tried to resolve by making necessary modifications in the agreement.
4. Is a threat to commit suicide termed coercion?
No, a threat to commit suicide can not be termed as coercion. But further, it also depends upon the situation. A well-known example is the case of Ammiraju v. Seshamma, who threatened to commit suicide in order to force his wife to release the property which amounted to coercion. His wife was prejudiced and it can't be forbidden by law. But under section 15, a mere prejudice cannot provide relief to a person.
5. Which parties are affected by undue influence?
The parties that are much affected by undue influence can be listed below as
Tender age
Old age
Doctor and patient
Parent and child
Lawyer and client
Real and apparent authority
Parent and child
Trusty and beneficiary
Landlord and tenant
Husband and wife
Fiduciary relationship
A person with low mental capacity
6. What is termed as the burden of proof?
"Burden of proof" is a term used under the term "undue influence" where one party uses its power to dominate the other party against its will. It is necessary to prove that a person is actually dominated by the other party. It is required to prove that a party took undue advantage of others and the other was in a position to get dominated by the other party.
7. What is a major difference between coercion and undue influence?
Coercion is a criminal offence whereas undue influence is not a criminal offence. Coercion doesn't include both parties whereas undue influence includes both parties. The relationship between both the parties is not necessary for coercion but in undue influence, both the parties help each other to satisfy the burden of proof. Coercion forcefully makes a person enter into a contract whereas undue influence is about dominating the other party.
8. Is silence a form of fraud?
No, silence is not considered fraud. But if a party is supposed to speak but instead keep silent of the facts then it amounts to fraud. In this case, the other party has all the rights to enquire about the particular facts that are hidden or are untold by the party. If a person continues to remain silent about the facts which are supposed to be shared, then it leads to fraud as it can harm the other party.
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