Ch 2 Free Consent

Free ConsentUnder Indian Contract Act1872 PUTTU GURU PRASAD INC GUNTUR

Consent Means ( Sec 13) Consent- two or more persons are said to consent when they agree upon the same thing at the same senseConsensus ad idem

When is a consent said to be free? When it is not made under Coercion (Sec15) When not made under undue influence ( Sec 16) When consent is not given under fraud (Sec 17) When it is not by misrepresentation ( Sec 18) When there is no mistake between the parties( It can be only when there is a Mistake of fact and not mistake of Law (Secs 20-22)

Coercion –Sec 15 Act Prohibited under Indian Penal Code or Detention of property – Duress in English Law Committing or threatening to commit any act under the Indian Penal Code Unlawful detaining, threatening to detain, prejudice to any person or property So that a person enter into an agreement E.g.. Threat to commit suicide, agree on some things so as to avoid prosecution Voidable

Undue Influence -Sec 16 Some relations between the parties That relationship is of a dominating nature- or where the person can use his will due to such position and Obtain an unfair advantage over the other party Real and apparent authorityor a fiduciary relationship or the mental capacity of the party is temporarily or permanently affected due to age, illness, mental or bodily illness. Voidable

Income Tax authority or a Magistrate Doctor Patient, Creditor Debtor, Teacher -Pupil Guardian and Child- It should have a trust and confidence relations so as not to exploit E.g. Solicitor buying the property or selling his property by under valuing or overvaluing Mental Distress but not statutory compulsion or urgent need of money Unconscionable Bargains not allowed Contracts with the pardanashin lady Unequal Bargain, Strindhan given as a security by the wife when the husband is in debt Remedy-Recission of Contract allowed–Sec 19 A

Fraud- Sec 17 Act committed by a person, or his agent or under his connivance etc with the intent to deceive another party or his agent to induce him to enter into contract Assertion of Facts without belief in their truth ( Derry V Peek) Active concealment> But mere silence not fraud-----> Until there is a duty to speak , > when silence is deceptive, > change the circumstances, > half truth Promise made without intention to perform Any other act which will deceive or declared to be fraud------------------ Voidable

Misrepresentation- Sec 18 Positive assertion- Not warranted of the person making- not true, though he believes to be true e.g. car has traveled only 1000 KM, Mr. Kapil Dev will become the director. But it will be untrue. Any breach of duty- without the intention to deceive and gives an advantage (gaining) to the person committing it or any other person claiming under him ( constructive fraud) e.g. Conceal the content of the document

Misleading others to his or someone else’s prejudice. By Inducing mistake about subject matter, suppression of vital facts which are material facts ---but not expression of opinion– change of circumstances to be stated, Causing however innocent a party to agreement might have been ------to make mistake as to the substance of the thing which is the subject matter of the agreement In all the above instances the consent must have been given by misrepresentation, which has caused to agree to give consent to the contractVoidable

Mistake- Sections 20 -22 When parties are under the mistake as to the matter of fact essential to agreement – may be as to the b) Mistake as to Subject matter Horse dead while the parties are agreeing, ship is sunk while contracting Different subject matter in mind ( Tarem Singh v. Sukhminder Singh case , (bhigha or Kanal of land)

b) Mistake as to the Identity of the Person Mistake as to the identity caused by Fraud Cases- (Cundy V Lindsay , Philip V Brooks Ltd)

Mistake as to the Nature of Promise e.g.. Thinking that A is signing a power of attorney, while it was a gift deed Mistakenly signing wrong documents Consequences Mistake of the both the parties- VoidBilateral Mistake- perished goods signing a separation deed , when actually not married( Galloway V Galloway)

Unilateral Mistake- Not just because it is mistake of one party Mistake of Law – Not voidable ( Law force in India) Mistake of fact – only allowed