case study on free consent

Law Audience Journal (e-ISSN: 2581-6705)

The Concept of Free Consent With Special Reference to a Landmark Case of Section 15 of The Indian Contract Act, 1872

• Post author: Varun Kumar
• Post published: January 11, 2022
• Post category: Volume 3 & Issue 3
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Authored By: Mr. Sarthak Das (BLS. L.L.B), Government Law College Mumbai,

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“Section 15 of the Indian Contract Act, 1872 deals with one of the vitiating factors of free consent to an agreement, that is coercion. This paper deals with one of the landmark cases in relation to the particular section. The case in question is Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr . The paper discusses the provisions of the Contract Act relating to Free Consent and the factors vitiating it. The facts of the case, the judgement and the rationale are also analysed. A critical analysis of the judgement is done at the end of the paper”.

I. INTRODUCTION:

Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr [1] , is a case that deals primarily with Section 15 and of the Indian Contract Act, 1872. The case revolves around the topic of Coercion as defined under Section 15 of the Indian Contract Act, 1872.

A Contract is defined as an agreement enforceable by the law. [2] Under Chapter II, and Section 10 of the Indian Contract Act, the requirements needed for an agreement to be called a contract are mentioned. As per the provisions of the law;

“What agreements are contracts. —All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”

As can be seen from the above provision, there are five essential elements for an agreement to be called a legally binding contract. They are;

• Free Consent of the Parties
• Competency of the Parties to the Contract
• Lawful Consideration
• Lawful Object
• Not expressly declared to be void by the law

In this research paper, our concern is with discussing the aspects of the first essential element as mentioned above, that is, the free consent of the parties to a contract. In furtherance of this, the legal provisions regarding consent and free consent are defined in Section 13 and 14 of the Indian Contract Act respectively.

Section 13 defines consent as follows ; Two or more persons are said to consent when they agree to the same thing in the same sense. It can be summarised through the maxim “consensus ad idem”, i.e., a meeting of the minds.

Moving forward to Section 14, which deals with ‘free consent’. As has already been noted, free consent of the parties to a contract is sine qua non for a contract to be valid in the eyes of the law. As per the Indian Contract Act, 1872, Free Consent is defined as follows;

“Free consent” defined. —Consent is said to be free when it is not caused by—

(1) coercion, as defined in section 15, or

(2) undue influence, as defined in section 16, or

(3) fraud, as defined in section 17, or

(4) misrepresentation, as defined in section 18, or

(5) mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake. As can be seen from the above definition, free consent is defined negatively in the Contract Act, which basically means that the absence of the five conditions of Coercion or Undue Influence or Fraud or Misrepresentation or Mistake makes the contract a valid one. These can be said to be the factors that vitiate consent of the parties to a contract.

Flowing from this, If the consent of one of the parties is not free consent, i.e., it has been caused by one or the other of the above stated factors, the contract is not a valid one. When consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. [3]

For example, A person is induced to enter into an agreement on the basis of fraud, he may, upon discovering the fact either uphold the contract or reject it. If the contract is not rejected, it becomes legally binding on both parties. If, however, the consent has been caused by mistake, the agreement is void. [4] [5] The first condition, which must be absent for consent to be free, is that consent should not have been obtained through coercion under Section 15 of The Indian Contract Act, 1872.

Coercion is defined as follows:

“Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. [6]

From the definition of “coercion”, we can identify the following essential characteristics of the crime of coercion. Coercion can be said to be caused when the consent of one of the parties to the agreement has been caused either by

• Committing or threatening to commit any act forbidden by the Indian Penal Code, 1860 or
• By unlawfully detaining or threatening to detain any property

Moreover, such an act should be to the prejudice of any person whatsoever.

II. FACTS OF THE CASE:

Chikkam Ammiraju and five others were the defendants, the first defendant was the younger brother of the husband of the first plaintiff i.e., Chikkam Seshamma. The first plaintiff and the second plaintiff had alleged that the property in possession of the defendants, originally belonged to the father of the first plaintiff, who is now deceased. The widow of the plaintiff’s father (the plaintiff’s mother) had alienated the property to the defendants without any justification. As a result, the plaintiff sued to set aside the same and got a decree that the alienation was not binding on the reversion. [7]

In furtherance of this, the husband of the first plaintiff and father of the second plaintiff was pressured by his younger brother and father (the defendants). As a result, the husband of the first plaintiff threatened to commit suicide in case, his wife and son did not execute a deed of release of property in favour of his brother. In consequence of this threat by the husband of the first plaintiff, she was made to transfer the said properties through a deed to the brother of her husband. It was this transfer that was then intended to be reversed by the plaintiffs.

II.I KEY ISSUES INVOLVED:

The fundamental questions that were before the court, when the appeal was filed by the plaintiff were;

• Whether a threat to commit suicide would constitute an act of Coercion or Undue Influence or both under Section 15 and 16 of the Indian Contract Act?
• Whether suicide was an act “forbidden by the Indian Penal Code” or not?
• If the act of threatening to commit suicide could have prejudiced the plaintiff?  

II.II CONTENTIONS RAISED:

The defendants contended inter alia that no such threat of committing suicide was given. However, the lower court found that threat was used and held that it amounted to coercion under Section 15 of the Indian Contract Act, and gave a decree in favour of the plaintiffs. The defendants then proceeded to file a second appeal in the High Court. Sadasiva Ayyar, J., agreeing with the lower Courts dismissed the appeal. Mooeb, J., held that the threat held out did not in law amount to coercion or undue influence and allowed the appeal. The result was that the second appeal was dismissed under section 98, Civil Procedure Code. The defendants then filed this Appeal under Section 15 of the Letters Patent from the judgment of Sadasiva Ayyar J. [8]

Fatanjali Sastri for the appellants argued that suicide is not an offence which is punishable under then Indian Penal Code, so Section 15 of the Indian Contract Act should not apply in this case. Moreover, the counsel argued that ‘Prejudice in section 16 means some detriment to property and not any sentimental grievance as in this case.

G, Yenkatarcumayya was the counsel for the respondent argued that Section 15 mentions ‘an act forbidden by the Indian Penal Code’ and not of an offence punishable under the Indian Penal Code. He further argued that suicide is an act that is forbidden by the Indian Penal Code, 1860 as the attempt or abetment of suicide is punishable by law. Moreover, he countered the argument of his learned opponent by stating how prejudice is not limited to ‘prejudice against property alone’. He argued that “section 15 provides for an exception where freedom of consent is absent and any circumstance which influences the mind of a party to a contract and destroys the freedom of volition would constitute coercion.” [9] Flowing from this he asserted that the loss of a husband to a wife or father to a son, both of which would have occurred had the threat to suicide been successful, would amount to sufficient coercion in the eyes of the law.  

II.III JUDGEMENT:

The judgement to the second appeal filed under Section 15 of the Letter Patent Act was decided by a three-judge bench of the Madras High Court. The bench consisted of Chief Justice Wallis, Justice Oldfield and Justice Seshagiri Aiyar. Wallis CJ and Aiyar J formed the majority opinion in this case with Oldfield J being the sole dissenting judge. Wallis CJ. disagreed emphatically with the assertion that a threat to commit suicide cannot be considered as an act ‘forbidden by the Indian Penal Code’.  He argued that “At common law suicide was a form of homicide. “Homicide properly so called” says Hawkins, (Pleas of the Crown, Book I, Chapter 9) “is either against a man’s own life or that of another.”

He further stated that Section 299 of the Indian Penal Code, which deals with the crime of Culpable Homicide is “sufficiently wide to cover deliberate suicide”, however he accepted that punishment for culpable homicide can only been given to a living offender, a scenario which is not possible in the case of suicide. He mentioned how abetment and attempting to commit suicide are both punishable under Section 304 and Section 309 of the Indian Penal Code respectively.

He concluded his reasoning by stating  “I find it impossible to hold that an act which it is made punishable to abet or attempt is not forbidden by the Indian Penal Code , especially as the absence of any section punishing the act itself is due to the fact that the suicide is in the nature of things beyond the jurisdiction of the Court.” Seshagiri Aiyar, J. agreed with the opinion of the Chief Justice. He added to the majority opinion by mentioning how the only reason the law cannot punish a person who commits suicide is because the law cannot reach him. He added how if a person either abets or attempts to commit the same crime, he is appropriately given punishment.

However, it must be noted that even Seshagiri Aiyar J. agreed to the fact that “there is no provision in the Indian Penal Code which forbids in terms commission of suicide.” He stated how the term forbidden by the Indian Penal Code is wider in meaning than the term “punishable by the law”, therefore he concluded that a threat to commit suicide can be construed to mean an act forbidden by the Indian Penal Code.

Both the judges agreed upon the fact that the act of the husband dying leaving a widow and a child with no father, in case a deed is not furnished which deprives the wife and child of their rightful property amounts to sufficient coercion under the eyes of the law.

Justice Oldfield was the sole dissenting judge, forming the minority opinion. He argued that since the act of suicide is not explicitly forbidden by the law, the only way to consider it as forbidden is by implication. He opted for a strict interpretation of the statutes. He argued that if the word ‘attempt’ is used in the legal sense, a threat to commit suicide is completely different from an attempt to suicide. He stated that “an attempt in the legal sense can be recognised as such only after the criminal’s intention has been frustrated, not when it is expressed; that is, when the threat is made.” [10]

He then turned to Section 16 which deals with Undue Influence and found no relevance to the case, as Section 16 clearly states that “one of the parties is in a position to dominate the will of the other” [11] . Since the husband was the one making the ‘threat’ and he was not one of the parties to the contract, the question of undue influence being used fails.

In relation to the above, it is important to point out how in the first appeal against the judgement of the lower court, the same issue was at hand. At that time, Justice Moore stated the example of a landmark case – Ranganayakamma vs. Alwar Setti [12] . In this case the dead body of the husband was not allowed to be removed from the house by the relatives of a boy, unless the widow legally adopted the boy aged thirteen years.

Justice Moore wrote in his judgement “In the Madras case however there would have been no difficulty in finding that the widow’s consent was obtained by “undue influence,” within the meaning of Section 16 of the Contract Act. As regards the question whether the release deed was brought about by “undue influence,” it may be that Swami was in a position to dominate his wife’s will but he was not a party to the contract and Section 16(2)(b) of the Contract Act consequently does not apply.” Simply meaning that since he was not a party to the contract, no question of undue influence arises in this case as opposed to Ranganayakamma vs. Alwar Setti . [13]

III. LAW COMMISION REPORT:

The Law Commission of India, in its 13th Report [14] , suggested amendments to Section 15 of the Indian Contract Act. This suggestion was made with the aim of overcoming the lacunae that exists in the language of the law. Section 15 of the Act mentions only those acts which are “forbidden by the Indian Penal Code”, this however means that acts which are forbidden by other penal provisions prevalent at the time are not covered under Section 15. The recommendations of the Law Commission were as follows

“The proper function of the Indian Penal Code is to create offence and not merely forbid. A penal code forbids only what it declares punishable. There are laws other than the Indian Penal Code performing the same function. We suggest that the words “Any act forbidden by the Indian Penal Code” should be deleted and a wider expression be substituted therefore so that penal laws other than the Indian Penal Code may also be included. The explanation should also be amended to the same effect.”

IV. ANALYSIS:

In order to analyse, we must start again with what the provisions of the law state with regards to the crime of coercion. Coercion is defined as – ‘Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. [15] We are concerned with the first part of the section which expressly states that for an act to be considered coercive, the wrongdoer must either commit or threaten to commit an act forbidden by the Indian Penal Code, 1860. The language of the provisions is very clear and therefore must be interpreted in that sense. The assistance of the Law Commission Report can be taken to understand this argument further.

The 13th Report clearly states that “ The proper function of the Indian Penal Code is to create offence and not merely forbid. A penal code forbids only what it declares punishable.” It is clear from the assertion of the commission too, that if an act for which there is no express punishment in the Indian Penal Code (as is the case for committing suicide), cannot be said to be forbidden by the Indian Penal Code.

Flowing from this argument, if the act is not forbidden, no action for coercion arises as a consequence. The moot question therefore arises, how can the court treat something as forbidden which is not expressly punishable under law.

Pollock and Mulla are also of the view that in the particular case, the minority view is correct, opting for a strict interpretation of the provisions, rather than interpreting them by implication, as had been done by the assenting judges. They too recommend an amendment in the language of Section 15 to cover such threats too.

Moreover, in the case of Palaniappa Mudaliar vs. Kandaswamy Mudaliar [16] , it was held that, “In order to constitute coercion, the threat must be unlawful and it must be shown that it was effected with the intention of coercing the other party to enter into an agreement.” Thus, even though the threat of the husband could be attributed to have been an act that is coercive, it does not fulfill the first condition of the statement, i.e., ‘the threat must be unlawful’ . As there are no provisions under the Indian Penal Code expressly declaring a threat to commit suicide or committing suicide unlawful, the act could not have been said to be coercive under Section 15 of the Contract Act.

The view of the dissenting judge appears to be more appropriate in this particular case. The learned judge very lucidly opposes the argument, that only because the act of abetting or attempting suicide is punishable by law, a threat to commit suicide must also be punishable through implication. He wrote in his dissenting judgement

“It does not follow that the failure to employ the other direct prohibition, or to make provision for the case of suicide in the Contract Act was due to inadvertence and that the omission should be supplied by inference. For it is possible that provision was omitted deliberately, because cases for its application would be rare and their truth difficult to establish, the party alleged to be coerced having usually easier means of preventing the accomplishment of the threat than by entering into the agreements sought to be avoided.”

As can be understood from the above, the majority judgement justified the absence of any provision explicitly forbidding the act of threatening to commit suicide by using only implication. The absence of the provision was justified by assigning meaning to the ‘aim of the legislature’. Meaning should not have been attributed to the aim of the legislature as that deviates from the express provisions stated in the law.

Therefore, the minority judgement seems more appropriate, solely for the reason that if a simple reading of Section 15 is done, without assigning any implied meaning to the provisions, it is clear that the act of ‘threatening to commit suicide’ would not be considered as coercion under the Indian Contract Act.

Cite this article as:

Mr. Sarthak Das, The Concept of Free Consent With Special Reference to a Landmark Case of Section 15 of The Indian Contract Act, 1872, Vol.3 & Issue 3, Law Audience Journal (e-ISSN: 2581-6705), Pages 55 to 64 (11 th January 2022), available at https://www.lawaudience.com/the-concept-of-free-consent-with-special-reference-to-a-landmark-case-of-section-15-of-the-indian-contract-act-1872/ .

Footnotes & References:

[1] Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr (1917) 32 MLJ 494.

[2] The Indian Contract Act, 1872, § 2(h).

[3] The Indian Contract Act, 1872, § 2(h).

[4] The Indian Contract Act, 1872, § 14.

[5] Dr R.K Bangia, CONTRACT-I 140 (7th Edn, 2017).

[6] The Indian Contract Act, 1872, § 15.

[7] Indian Law Reports: Madras (1918) Volume 41 .

[8] Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr (1917) 32 MLJ 494.

[9] Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr (1917) 32 MLJ 494.

[10] Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr (1917) 32 MLJ 494.

[11] The Indian Contract Act, 1872, § 14.

[12] Ranganayakamma v. Alwar Setti (1889) 13 ILR 214.

[13]  Ranganayakamma v. Alwar Setti (1889) 13 ILR 214.

[14]   Law Commission of India, 13th Report on Contract Act, 1872 (1958).

[15] The Indian Contract Act, 1872, § 15.

[16] Palaniappa Mudaliar v Kandaswamy Mudaliar (1971) 1 Mys LJ 258 (India).

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CONTRACT LAW: FREE CONSENT AND COERCION

Published by admin on september 15, 2023 september 15, 2023.

This Article is written by Kunal Peelwan of 7 th Semester of Chaudhary Charan Singh University of Law, Uttar Pradesh, Intern under Legal Vidhiya

Contracts are the backbone of our modern world, governing the agreements we make daily. They are rooted in the principle of “free consent,” which dictates that all parties involved should willingly agree to the terms without external coercion. This article delves into the intricate landscape of contract law, exploring how the concept of free consent intersects with the complex issue of coercion.

To comprehend contracts fully, one must grasp their formation. Parties engage in negotiations, discussing and deciding on the details of their agreement. However, this process isn’t always straightforward, and parties may find themselves feeling pressured to consent. This article simplifies these concepts through relatable examples, shedding light on why individuals might reluctantly agree to a contract. It emphasizes the paramount importance of maintaining contracts free from any kind of undue influence or coercion and explores how the legal system endeavours to uphold fairness  in contractual relationships.

Keywords : Contract Law, Free Consent, Coercion

Introduction

Contracts silently shape our daily interactions, influencing everything from our online purchases to our workplace agreements. However, beyond their apparent simplicity, contracts have deeper complexities. Within the framework of the Indian Contract Act, 1872, two essential pillars, free consent and coercion, stand as critical determinants of a contract’s validity. This journey delves into the straightforward yet vital concepts that underpin the world of contracts, unravelling the significance of free consent and coercion.

• Free Consent: Section 14 of the Indian Contract Act unequivocally emphasizes the pivotal requirement for the validity of any contract: free consent. Within the purview of this statute, free consent signifies that the parties entering into the contract must do so without any external pressures, undue persuasion, fraudulent tactics, misrepresentation, or misunderstandings.
• Coercion: Under Section 15 of the Indian Contract Act, pertains to the use of force, threats, or undue influence to coerce someone into a contract against their will. This contravenes the principle of free consent crucial for a valid contract under Section 14.

Free consent in Indian contract law signifies voluntary agreement without undue influence, while coercion involves using force or threats to compel someone into a contract against their will, rendering it voidable, Contracts tainted by coercion become voidable per Section 19, allowing the affected party to cancel the agreement due to unfair tactics. Coercion may involve physical threats, blackmail, psychological pressure, or unlawful actions compelling contractual compliance.

Free Consent

In the context of contract law in India, the concept of free consent is of paramount importance. It is articulated under Section 14 of the Indian Contract Act, 1872. Free consent implies that for a contract to be valid, all parties involved must willingly and voluntarily agree to its terms and conditions without any form of coercion, undue influence, fraud, misrepresentation, or mistake. In essence, it emphasizes that contracts should be the result of a genuine meeting of minds where each party fully comprehends the terms and enters into the agreement of their own accord.

To ensure free consent, the law mandates that parties should be competent to contract, meaning they must be of sound mind and not disqualified by law. Additionally, any element of duress or pressure, whether through threats, deceit, or manipulation, can vitiate the consent and render the contract voidable at the option of the aggrieved party. This legal safeguard seeks to protect individuals from entering into agreements that they might later regret due to circumstances that undermine their ability to make a truly voluntary choice, thereby upholding the integrity and fairness of contractual relationships in India.

In the landmark case of Satyabrata Ghose vs. Mugneeram Bangur & Co. (AIR 1954 SC 44), [1] a landmark case in Indian contract law that established the principle that both innocent and fraudulent misrepresentation can render a contract voidable if they result in the absence of free consent. This case underscored the importance of genuine consent in contracts and clarified that parties deceived by misrepresentation have the option to rescind the contract. It also highlighted that silence can constitute misrepresentation if there is a duty to disclose certain facts.

In Indian contract law, the concept of coercion plays a significant role in determining the validity of a contract. Coercion, as defined under Section 15 of the Indian Contract Act, 1872, refers to the act of using force, threats, or undue influence to compel one party to enter into a contract against their will or better judgment. The essence of coercion is that it erodes the fundamental principle of free consent, which is essential for a contract to be valid. When coercion is present, it has the potential to render the contract voidable at the option of the aggrieved party. This means that the party who was coerced into the contract has the legal right to void or annul the contract, as it was not entered into willingly or freely. Coercion can manifest in various forms, such as physical threats, blackmail, psychological manipulation, or any unlawful actions aimed at forcing someone into a contractual agreement. In essence, the law in India takes a strong stance against contracts tainted by coercion, recognizing the need to protect individuals from entering into agreements under duress or improper influence.

Furthermore, Section 10 of the Indian Contract Act reinforces the importance of free consent by stipulating that all agreements are contracts if they are made with the free consent of parties competent to contract, without coercion or other vitiating factors. This highlights the central role of free consent in ensuring the validity of contracts. In cases where coercion is established, the affected party has the legal remedy to seek the contract’s nullification, thereby upholding the principles of fairness and voluntariness in contractual relationships in India. The presence of coercion serves as a safeguard against exploitation and unethical practices in contractual dealings, aligning with the overarching objective of contract law to promote just and equitable agreements between parties.

In the landmark case of Syndicate Bank v. R.S. Raghunathan (2000), [2] this case involved a loan agreement between a bank and an individual. The court held that if a person enters into a contract with a bank under economic duress or coercion, such a contract can be considered voidable. This case highlighted that even in commercial transactions; coercion can render a contract unenforceable.

Importance of Free Consent and Coercion

The concepts of free consent and coercion are of paramount importance in contract law because they serve as foundational principles that uphold the fairness and integrity of contractual relationships. Here’s why each of these concepts is significant:

1. Voluntary Agreements: Free consent ensures that parties enter into contracts voluntarily and without any external pressure. It reflects the true intention of the parties to be bound by the terms they have agreed upon.

2. Legitimacy and Validity: Contracts formed with free consent are considered legitimate and valid under the law. They promote trust and fairness in business transactions and personal dealings.

3. Protection of Parties: Free consent protects the interests of both parties involved. It ensures that individuals or entities are not coerced or manipulated into agreements that may not be in their best interest.

4. Legal Enforceability: Contracts based on free consent are legally enforceable, allowing parties to seek remedies or specific performance in case of breach.

Importance of Coercion:

1. Safeguard Against Unfair Practices: Coercion serves as a safeguard against unethical and unfair practices. It discourages parties from using force, threats, or undue influence to gain an unfair advantage in contractual agreements.

2. Protection of Vulnerable Parties: Coercion laws protect vulnerable individuals or entities who may be at risk of being exploited or coerced into agreements against their will or better judgment.

3. Voidability: The presence of coercion in a contract renders it voidable, not void. This means that the coerced party has the option to either affirm or void the contract, providing a legal remedy to escape an unjust agreement.

4. Legal Consequences: Coercion carries legal consequences, which may include the annulment of a contract, compensation for damages, or even criminal penalties in cases of extreme coercion.

In essence, free consent and coercion are integral to the principles of fairness, voluntariness, and ethical conduct in contract law. Free consent ensures that contracts are formed on a level playing field, while coercion laws protect individuals and businesses from exploitative practices, ultimately upholding the integrity of contractual relationships.

Difference between Free Consent and Coercion

Free Consent and Coercion are two distinct concepts in contract law that play crucial roles in determining the validity of a contract. Here are the key differences between them:

1. Definition:

   – Free Consent: Free consent encompasses the authentic, voluntary, and uncoerced concurrence of all parties involved in a contractual arrangement. It signifies that these parties willingly embrace the contractual terms without succumbing to external pressures or resorting to unethical stratagems.

   – Coercion: In sharp contrast, coercion is the utilization of force, intimidation, or undue influence to coerce one party into a contractual agreement against their will or better judgment. This term underscores that consent is secured through inappropriate means, including intimidation or manipulation.

2. Voluntariness:

   – Free Consent: The concept of free consent underscores the voluntary nature of the agreement, wherein all parties possess a profound understanding and willingly embrace the stipulated terms and conditions.

   – Coercion: Coercion erodes voluntariness, as it entails the presence of external factors that manipulate or compel one party to yield, thereby subverting the core principle of voluntary agreement that underpins a contract.

3. Legality:

   –  Free Consent: Contracts forged through free consent stand as legally sound and enforceable agreements.

   – Coercion: In stark contrast, contracts tainted by coercion do not inherently amount to nullity but are regarded as voidable at the discretion of the coerced party. This signifies that the coerced party possesses the prerogative to either affirm or void the contractual pact.

4. Undue Influence:

   – Free Consent: The concept of free consent inherently necessitates the absence of undue influence, ensuring that no party wields an unfair advantage over the others. This principle rests upon a foundation of equality among the parties.

   – Coercion: Coercion, however, revolves around one party exerting undue influence or undue pressure on another, resulting in an unjust advantage.

5. Remedies:

   – Free Consent: Contracts founded on free consent accord the customary remedies for breaches of contract, such as compensation for damages or the pursuit of specific performance.

   – Coercion: Contracts that bear the blemish of coercion may be voidable, affording the coerced party the option to either pursue the contract’s annulment or seek restitution for any losses sustained.

   – Free Consent: It signifies that all parties willingly and genuinely intend to be bound by the contractual terms.    – Coercion: Coercion implies that at least one party had no actual intention to enter into the contractual agreement, but rather was forced or manipulated into complying with it.

In summary, the distinction between Free Consent and Coercion is pivotal. Contracts formed on the bedrock of free consent are upheld as valid, whereas those tainted by coercion are categorized as voidable, granting the coerced party the prerogative to either affirm or nullify the agreement.

In a situation where there’s a lack of free consent and coercion is evident in a contract, here’s what one can do legally:

1. Seek Contract Annulment: If you believe you were coerced or forced into a contract against your will, you can take legal action to have the contract annulled. Annulment means the contract is cancelled, and it’s treated as if it never existed.

2. Consult an Attorney: It’s essential to consult with a lawyer who specializes in contract law. They can help you understand your rights, assess the strength of your case, and guide you through the legal process.

3. Gather Evidence: To support your case, gather evidence that shows coercion or lack of free consent. This might include emails, text messages, witness statements, or any documents that demonstrate the improper tactics used to force you into the contract.

4. File a Lawsuit: Your attorney can help you file a lawsuit against the other party involved in the contract. You’ll need to present your case in court and provide evidence of coercion.

5. Request Remedies: If the court finds in your favour, you may be entitled to remedies such as contract annulment, damages, or compensation for any losses you incurred due to the coerced contract.

Remember, it’s crucial to consult with a legal professional who can provide personalized guidance based on the specifics of your situation. Taking legal action against a coerced contract can help protect your rights and interests.

In the realm of contract law, free consent and coercion serve as critical pillars that determine the validity and fairness of agreements. These concepts are not mere legal jargon but have a profound impact on our daily lives, influencing the agreements we enter into, from purchasing goods online to forming workplace contracts.          

The principle of free consent, as outlined in Section 14 of the Indian Contract Act, underscores the fundamental requirement for a valid contract. It demands that all parties willingly and voluntarily agree to the terms, free from external pressures, deceit, or manipulation. This principle ensures that contracts are the result of genuine and informed decisions, promoting trust and fairness in business and personal dealings. It safeguards the interests of all parties involved, upholding the legitimacy and enforceability of contracts.

On the other hand, coercion, as defined in Section 15 of the same Act, represents a stark contrast. It involves the use of force, threats, or undue influence to compel one party to enter into a contract against their will. Coercion erodes the essence of free consent, making the affected contract voidable at the option of the coerced party. This legal safeguard protects individuals and businesses from exploitative practices and unethical tactics in contractual dealings.

In conclusion, the concepts of free consent and coercion are not just legal doctrines; they are cornerstones of fairness, voluntariness, and ethical conduct in contract law. They ensure that contracts are entered into willingly, on equal footing, and without improper influence. Upholding these principles is essential to maintaining the integrity and trustworthiness of contractual relationships in India, promoting a just and equitable business environment for all.

• https://www.indiacode.nic.in/handle/123456789/2187?sam_handle=123456789/1362 Visited on 02-09-2023
• https://www.legalservicesindia.com/ Visited on 02-09-2023
• https://legalvidhiya.com/free-consent-coercion-and-undue-influence/#_ftn2 Visited on 03-09-2023
• https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=benefits+of+free+consent+in+contract+law+in+India&btnG = Visited on 03-09-2023
• https://www.casemine.com/search/in/Syndicate%20Bank%20v(DOT)%20R(DOT)S(DOT)%20Raghunathan%20 Visited on 04-09-2023
• https://libguides.bodleian.ox.ac.uk/srch.php?q=Satyabrata+Ghose+vs.+Mugneeram+Bangur+%26+Co.+%28AIR+1954+SC+44%29&guide_id=422964 Visited on 04-09-2023
• https://www.legalserviceindia.com/legal/article-2234-case-analysis-satyabrata-ghose-v-s-mugneeram-bangur.html Visited on 04-09-2023

[1] Satyabrata Ghose vs. Mugneeram Bangur & Co. (AIR 1954 SC 44)

[2] Syndicate Bank v. R.S. Raghunathan (2000)

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Search this blog, understanding free consent in contracts: your comprehensive guide.

In the realm of contract law, the concept of free consent is paramount. It ensures that agreements entered into by parties are voluntary, without any coercion or undue influence. In this guide, we delve deep into the intricacies of free consent, exploring its definition, importance, and legal implications.

1. Defining Free Consent

A. overview.

Free consent refers to the uncoerced and voluntary agreement of parties to enter into a contract. It implies that each party has the capacity to understand the terms of the contract and willingly agrees to be bound by them.

b. Elements of Free Consent

Free consent is characterized by several essential elements:

• Absence of Coercion : The absence of any force or threat that compels a party to enter into the contract against their will.
• Absence of Undue Influence : The absence of any improper persuasion that undermines a party's ability to make an independent decision.
• Absence of Fraud : The absence of any deceit or misrepresentation by one party that induces the other party to enter into the contract.
• Absence of Misrepresentation : The absence of any false statement of fact made by one party that leads the other party to enter into the contract under false pretenses.
• Absence of Mistake : The absence of any misunderstanding or error regarding the terms of the contract by either party.

2. Importance of Free Consent

A. protection of parties.

Free consent serves as a safeguard against exploitation and unfairness in contractual relationships. It ensures that parties are not unfairly coerced or misled into agreements that are detrimental to their interests.

b. Validity of Contracts

Contracts entered into without free consent may be deemed voidable at the option of the aggrieved party. This means that the affected party has the right to rescind the contract and seek remedies for any losses suffered.

3. Legal Implications of Free Consent

A. voidable contracts.

Contracts entered into without free consent are considered voidable, meaning that they are initially valid but can be voided at the option of the aggrieved party. The affected party must promptly notify the other party of their intention to rescind the contract.

b. Remedies for Breach

If a contract is found to lack free consent, the aggrieved party may seek remedies such as rescission of the contract, restitution of any benefits conferred, and damages for any losses suffered.

4. Common Scenarios Involving Free Consent

A. pressure from authority figures.

In some cases, individuals may feel pressured to enter into contracts due to influence exerted by authority figures, such as employers, family members, or government officials.

b. Misrepresentation of Facts

Misrepresentation occurs when one party makes false statements or conceals material facts to induce the other party to enter into the contract. This can undermine the voluntariness of the agreement.

In conclusion, free consent is a fundamental principle of contract law that ensures the fairness and integrity of contractual relationships. Parties entering into contracts must do so willingly, without any coercion, undue influence, or misrepresentation. Understanding the concept of free consent is essential for both drafting and interpreting contracts, as it helps protect the rights and interests of all parties involved.

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THE DIFFERENCE BETWEEN CONSENT AND FREE CONSENT IN CONTRACT LAW: A COMPARATIVE STUDY

For an agreement to be constituted as a Valid contract consent is very important and pure consent is not accepted it must be free consent that is free from misrepresentation, fraud, Mistakes, and

Introduction

For an agreement to be constituted as a Valid contract consent is very important and pure consent is not accepted it must be free consent that is free from misrepresentation, fraud, Mistakes, and undue influence. Consent is dependent upon a principle called “consensus ad idem” which means “meeting of minds” where there is no meeting of minds there is no consent that can be formed.

Indian Contract Act 1872

Indian Contract Act 1872 mainly deals with the provisions related to the contracts like what are the essentials for a contract, acceptance & revocation, consent, and conditions for a valid contract. It also defines the difference between Consent and Free Consent which we will discuss in the coming sections. Consent is defined in Section 13 of the ICA as “when two parties entered into the contract, they must agree on the same thing in the same manner” [1] and “If there is no ad idem, or meeting of minds, on the contract’s essential provisions, the contract will be void” [2] .

It is defined under “section 15 it is said that Coercion means implied or expressed threats to a person to do something or to agree on something. It involves forceful acts which dominate the free will of the party and make a party bound to do the threatening party wants to do. Coercion is defined as the act of performing or attempting to perform, an act banned by the Indian Penal Code (45 of 1860), or the unlawful detention, or threat of detention, of any property, to the disadvantage of any person, with the intent of compelling that person to sign a contract” [3] . For Example : If A wants to buy B’s car, but if B doesn’t want to sell his car. Still, if A threatens him that if he doesn’t sell the car to A then he would kill his son this is called Coercion

Undue influence:

when one party to the contract with his power or position influences the other party to do what he/she wants to be done in their favour, the influence which has been used on the weaker party to the contract is called Undue Influence. “Undue influence is addressed in Section 16 of the Indian Contract Act of 1872. When one of the signatories is in a position to exercise another’s own will and manipulate it for his profit, the contract is said to be made by “undue influence.” (2) If a person has actual or apparent power over the other and, or is in a fiduciary relationship with the other, or if he manages to enter into a contract with a person whose mental ability is partially or wholly defective by age, disease, or psychological or individual’s physical distress, he is in a position to affect that people’s will.

(3) When an individual with the authority to influence the will of some other party entered a contract with him and the compensation would seem to be unjustifiable on its face or based on the facts presented, the person with the ability to control the will of the both these bears the burden of proving that the contract was not influenced by undue influence.” [4] .

For Example: if M wants to sell his car for 5lakh rupees and if N uses his power and asks M to sell his car for 3 lakhs to N then it is Undue Influence .

If a person knows the material fact of the contract and the flaws relating to it. Doesn’t disclose it to deceive the other party and claim some benefit put off it is called Fraud. “ Any of the following acts deemed by a party to a contract, or with his permission, or by his agency, with the intent to deceive another party to the contract or his agent, or to encourage him to sign the contract are regarded fraud,” says Section 17 of the Indian Contract Act 1872.

• the purposeful concealing of a fact by anyone who has adequate information or belief in the fact;
• the promotion as a fact of something that is not true by someone who does not believe it to be true.
• a decision was taken but not intended to be kept;
• any other deception-inducing act;
• any conduct or omission that the law expressly declares fraudulent” [5] .

For Example: if S proposes to sell Shimla apples to R and R believes that it is Shimla apples buy it. but S knowing the fact that they are not Shimla apples but Kashmir apples sell Kashmir apples to R in the name of Shimla apples and flew away with that money then it is Fraud.

Misrepresentation

Misrepresentation means any representation made by one person by his actions, words or by any means that amounts to an assertion not in accordance with the facts then it is called Misrepresentation “According to section 18 of the Indian Contract Act of 1872, misrepresentation is defined as:

(1) the positive assumption of something that is not true, even though the man attempting to make it appears to believe it to be true;

(2) any clear violation of responsibility that rewards the person committing it, or anybody else trying to claim under him, without desiring to deceive, by trying to mislead another to his bias, or the bias of any one claiming under him;

(3) inadvertently causing a party to a contract to make a mistake about the material of the product that is the subject of the agreement” [6]

For Example – C wants to sell mangoes and D wants to buy Alphonso mangoes so C sold him normal mangoes in place of Alphonso mangoes but later D discovered that they are not Alphonso mangoes. this is called Misrepresentation.

From the above five attributes besides a mistake of law all the above if implicated then would be voidable of the party. for whom the free consent is intended to be given voluntarily without any force applied.

The concept of Free consent is better understood in the landmark case of “ Raffles v Wichelhaus, 1864 in this case it is said that the defendant consented to the claimant’s offer to sell cotton. According to the contract, the cotton would be delivered on the ‘Peerless’ ship. The Peerless was the name of two ships, they agreed on the first ship, which left in October, according to the defendant. The claimant thought they’d reached an agreement on the second ship, which was set to leave in December. The other party was obliged to sue to recover damages when the defendant refused to accept the goods. A reasonable person could not have known which sailing had been agreed to beforehand, the court decided. As a result of the lack of consensus ad idem, the contract was void” [7] .

Derry v Peek

“The court concluded in the landmark case Derry v Peek that a person is not committed fraud if he or she honestly believes a fraudulent statement is accurate. As a result, only intentional misrepresentation will be considered fraud. The line between misrepresentation and fraud was also clarified in this case and all the ambiguity related to the consent was cleared” [8] .

Smith v Land & House Property Corp [9]

“In this case The complainant listed his hotel for sale on Craigslist, alleging that it had been leased to a “highly desirable renter.” The defendants came to an arrangement to buy the hotel. Because he was bankrupt, the tenant was unable to pay his rent. As a result, the respondents refused to fill out their contractual obligations, prompting the plaintiff to sue for a particular performance. The plaintiff’s statement was a fact, not an opinion. according to the Court of Appeal” [10] .

The offended party then has the choice to:

• Rescind/cancel the contract
• Making it unenforceable in a court of law
• Or insist on the fulfilment of the contract if he is permitted to do so
• Or demand damages for the loss sustained as a result of the above-mentioned circumstances’ enticement.

What is the position of Such contracts formed ?

When consent is taken from Fraud, Misrepresentation, Undue Influence, and Coercion. it is voidable at the option of the party whether to continue or rescind the contract. And once the party agrees to continue, then he cannot file a case later on.

Advantages and disadvantages

 For suppose when a person commits Coercion, Undue Influence, misrepresentation, or fraud then the other party can file a case and make the contract invalid. So that he/she can abstain from not performing the contract for which he/she has not consented. And the weaker parties are protected. There must be some specific laws in order to control these activities, otherwise, the stronger party to the contract may influence his power over the weaker party. When we talk about the disadvantages of these sections. Assume, that if there is a weaker party in a contract and if he doesn’t want to perform a contract, he/she may make false allegations about the other party, as the other party will be in a position to dominate the weaker party the society may also believe it until proven that those allegations are fake.  Some people may use these for the wrong purposes.

Therefore, after all the discussions it is clear that consent obtained from Coercion, Undue Influence, misrepresentation, or fraud is voidable at the option of the party whose consent was so caused. And the consent which is free from all these is acceptable to constitute a valid contract. so from the above case laws and explanation, you may come to the conclusion that only free consent is accepted and is valid.

Author(s) Name:  B. Solomon Raju (Damodaram Sanjivayya National Law University)

References:

[1] S. 13, Indian Contract Act 1872.

[2] Supra 1

[3] S. 15, Indian Contract law 1872.

[4] S.16, Indian Contract law 1872.

[5] S.17 Indian Contract Act 1872.

[6] S.18, Indian Contract Act 1872.

[7] Raffles v Wichelhaus [1864] EWHC Exch J19.

[8] Derry v Peek [1889] UKHL1.

[9] (1884) 28 Ch D 7

[10] Smith v Land & House Property Corp (1884) 28 Ch D 7

E-Justice India

Free consent as an essential for a valid contract: an analysis with special reference to indian cases, author: bhavya dayal, introduction.

The Indian Contract Act of 1872 governs contracts in India. The Act states that no contract shall be made unless both parties are fully committed and willing to have the contract legally enforceable. As a result, the concept of free consent becomes extremely important. Section 12 [1] of the Indian Contract Act expressly states that a contract must have the free consent of both competent parties in order to be legally enforceable and binding.

The definition of consent in Indian contract law is given in Section 13 [2] , which states that “it is when two or more persons agree on the same thing and in the same sense.” As a result, the two people must agree on the same thing in the same way. Giving consent is not enough to make a contract enforceable. Consent must be freely and voluntarily given.

Section 14 [3] of the Indian Contract Act defines free consent as consent that is free of coercion, undue influence, fraud, misrepresentation, or mistake. When consent would have been given in the absence of such factors, it is said to be so caused. The goal of this concept is to ensure that the contracting parties’ decisions have been clear since the contract’s inception. As a result, consent obtained through coercion, undue influence, fraud, misrepresentation, or mistake has the potential to render the contract void.

REASERCH QUESTIONS

Several questions pop up in our minds when we study about free consent in contracts,

• What is free consent?
• What is coercion?
• What is the meaning of misinterpretation?
• What are some of the important Indian cases on free consent?

RESEARCH METHODOLOGY 

The research methodology used is secondary research, an approach which includes gathering information from secondary sources such as academic papers, journals, and reports available for public use both online and offline.  Majority of the data is collected from the internet, through multiple websites, blogs, and channels, with the sources being duly cited at the end.  After data collection, it has been combined and collated in a comprehensive and understandable format, to increase the overall effectiveness of this paper.  And the research is compiled in an impartial manner.

H 0 – There are no need of free consent for a contract to be valid.

H 01 – Section 13 of the Indian Contract Act, which states that “it is when two or more persons agree on the same thing and in the same sense”, if there is not free consent the contract won’t be valid.

The essence of these acts is the Latin phrase consensus ad idem, which means that the parties to the contract must agree. The purpose of a contract as a two way deal is defeated if neither party’s consent is free. A contract formed through free consent safeguards the validity of an agreement, providing the parties with a protective shield. It allows the parties to maintain their autonomy in defining their running policy or principle.

Concept of Consent

According to Section 13 of the Indian Contract Act, consent exists only when the parties to a contract agree on the same thing in the same sense. Consensus ad idem, or a meeting of the minds, must be at the heart of all legal contracts. This idea was developed further in the cases of Raffles vs. Wichelhaus (1864) and Smith vs. Hughes (1871).

In the case of Raffles v. Wichelhaus [4] two parties, ‘A’ and ‘B,’ entered into a contract for the sale of 125 cotton bales from Bombay by a ship named “peerless.” There were two ships with the same name, and while Party ‘A’ was thinking about one, Party ‘B’ was thinking about the other. The court ruled that neither party had reached an agreement. As a result, the contract was null and void.

In the case of the Smith vs. Hughes [5] Queen’s Bench decided that even if a party did not express his or her assent explicitly, but acted in such a way that a reasonable man would believe him assenting to the terms proposed by the promisee, he or she would be bound by the contract as if he had expressly entered into it.

Kinds of violations of Free Consent

According to the Indian Contract Act of 1872, free consent of contract parties is not obtained if it is tainted by:

In accordance with the Indian Contract Act, 1872, coercion means, “Coercion is the committing, or threatening to commit, any act is forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.”. [6]

A significant factor is that the Indian Penal Code is not always applicable at the location where consent was obtained. The phrase “to the prejudice of any person whatever” is an important part of the law because it means that coercion can be directed against the prejudice of anyone, not just the party to the contract. Surprisingly, parties other than the contracting parties can also impose coercion.

Even a third party to the contract can use coercion to obtain consent,  as seen in the case of Ranganayakamma v. Alwar Setti [7] where a widow was coerced into adopting a boy and was not allowed to remove her husband’s body until the adoption was completed.

It is the responsibility of the party whose consent was allegedly coerced to demonstrate that the consent obtained from the aggrieved party was obtained through coercion.  When a party’s consent is obtained by coercion, the contract becomes voidable at the will of the aggrieved party.

In the case of Chikkam Ammiraju and Ors. v. Chikkam Seshamma and Anr [8] 1916 MWN 368 the Madras High Court ruled that threatening to commit suicide is also coercion, and the aggrieved party has the right to terminate the contract. In this case, the husband threatened his wife and son with suicide if they did not sign a sale deed in favour of his younger brother. They carried out the deed but later pleaded guilty to coercion. Because the act of committing suicide is prohibited under the IPC, the husband’s act was found to be illegal, and the consent obtained was found to be obtained through coercion.

Undue Influence

According to Section 16 of the Indian Contract Act, 1872 an influence will be considered as Undue Influence when,

• One party to the contract is in a position of trust and controls the other party wrongfully.
• Such a person uses his dominant position to gain an unfair advantage over the other.

There are two key elements of undue influence,

• The relationship trust, confidence, authority.
• Unfair persuasion careful examination of the terms of the contract. [9]

A contract is said to be induced by “undue influence” when the parties’ relations are such that one of the parties is in a position to dominate the will of the other and uses that position to gain an unfair advantage over the other. The existence of a position of authority, trust and confidence of one party over another, and the use of unfair persuasion by the party with authority are the elements that constitute coercion.

In the case of Lingo Bhimrao Naik v. Dattatrya Shripad Jamadagni [10] a mother was accused of exerting undue influence on his adopted son when he reached the age of majority in order for him to ratify the gift deeds regarding non watan property made to her daughters, as well as obstructing his ability to consult his natural father. The court ruled that the adoptive mother abused her position of authority to exert undue influence over his son in order to gain an unfair advantage in having the gift deeds ratified. Furthermore, because the adoptive son was unaware of his legal rights, the case was adjourned.

Fraud, according to Section 17 of the Indian Contract Act, is defined as any of the following acts committed by a contracting party or its connivance or agent in order to deceive or induce a party or its agent to enter into the contract:

• The effective concealment of a fact by a person who is aware of it.
• A promise made with no intention of keeping it.
• Any other act that has the potential to deceive.
• Any act or omission that the law considers fraudulent. [11]

Silence on facts likely to affect a person’s willingness to enter into a contract is not fraud unless the circumstances of the case are such that, having regard to them, the silent person is obligated to speak or unless his or her silence is equivalent to speech in and of itself.

In the case of Bimla Bai vs Shankarlal [12] a father referred to his illegitimate son as “son” in order to save his marriage. It was determined that the father knowingly concealed the son’s illegitimacy with the intent of defrauding the bride’s parents, which amounted to fraud.

Misrepresentation

Misrepresentation can be classified into three types, according to Section 18 of the Indian Contract Act

• When a false statement of fact is made but it is believed to be true.
• When the person making the false statement violates duty and gains an unfair advantage, even if this was not the party’s intention.
• When one contracting party acts in an innocent manner, causing the other party to make a mistake(s) regarding the contract’s contents.

The three types of misrepresentation have one thing in common, misrepresentation is defined as an unintentional mistake. The burden of proof is on the party alleging misrepresentation in order to avoid the contract to demonstrate that misrepresentation was used to obtain consent. When consent is obtained by deception, it is voidable at the option of the aggrieved party.

In the case of Bhagwani Bai v. LIC [13] , The court held that non-disclosure of lapsed policies could not have influenced the defendant corporation from not entering into a new policy. The court held for the plaintiff saying that it was not misrepresentation or undue advantage and order the defendant to pay the amount at the rate of 6%.

Section 20 of the Indian Contract Act states that if both parties to an agreement are mistaken about a fact essential to the agreement, the agreement is null and void. A mistake does not invalidate consent; rather, it misleads the party, causing the consent to no longer be considered free.

Mistake of Law

When legal provisions are misunderstood by contracting parties, this is referred to as a Mistake of Law. Now, the party may be perplexed as to whether the law of the home country or the law of a foreign country applies. When a contracting party claims ignorance of the laws of the home country, the contract cannot be avoided because such an excuse is not considered valid. However, if the source of the confusion is foreign law, the contracting party may be excused from the contract due to ignorance of such laws.

Mistake of Facts

When the subject of the misapprehension is the contract’s clauses or terms, it is referred to as a factual error. The misunderstanding could be on the part of one or both parties.

• Bilateral Mistake: When a fact is the source of misunderstanding for both contracting parties, the agreement is said to be null and void.
• Unilateral Mistake: When a fact is the source of misunderstanding for one of the contracting parties, the agreement remains valid. Only when a party makes a mistake about the parties to the agreement or the nature of the transaction does the agreement become null and void.

The plaintiff in Ayekpam Angahl Singh and Others vs. Union of India and Others [14] was the highest bidder in a fishery auction. The annual rent was 40,000, and the rights were auctioned off for three years. The plaintiff claimed that he assumed the rent amount would be the same for all three years. As a result, he claimed that he had made the same mistake. Because the mistake was made unilaterally in this case, the contract could not be avoided.

The plaintiff in Dularia Devi v. Janardan Singh [15] was an illiterate woman who wanted to leave her properties to her daughter. The defendants took her thumb prints on two documents that she thought were in her daughter’s favour, but the second document was in the defendants’ favour, who were only supposed to execute the deed. She later filed a suit to cancel the sale deed, and it was determined that because the woman was unaware of the nature of the second document, it was void.

• The burden of proof lies with the party defending the coercion.
• If the plaintiff wants to bring an action to stop a contract entered into on the grounds of undue influence, two issues must be kept in mind.
• In a large majority of cases, fraud cannot be proved by concrete and observable proof.
• The burden of proof is on the defendant to show that the misrepresentation was not rendered fraudulently.

SUGGESTIONS

• Not many people are aware of the difference between consent and free consent.
• More research papers must be written covering this concept.
• People must be informed about the difference in mistake of fact and mistake of law.
• Lastly, the most important thing everyone must be made aware of their rights when their right to free consent is infringed.

Consent is an essential component of any decision making process and serves as the foundation for contract formation. However, in recent years, obtaining free consent has become extremely difficult.  As a result, methods for determining whether consent was freely given are required.  When people are charged with coercion, undue influence, or other crimes, they tend to rely on their defences. The various methods for influencing consent are discussed, and in cases of coercion, undue influence, fraud, and misrepresentation, the contract is usually voidable at the option of the aggrieved party.  However, in the event of a mistake, the parties can only avoid the contract if there is a bilateral mistake by one of the parties regarding the important facts of the agreement or if there is a problem with knowledge of foreign law.

[1] Indian Contract Act, 1872

[4] (1964) 2 H&C 906

[5] (1871) LR 6 QB 597

[6] Section 15 India Code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00035_187209_1523268996428§ionId=38618§ionno=15&orderno=15#:~:text=India%20Code%3A%20Section%20Details&text=%22Coercion%22%20is%20the%20committing%2C,to%20enter%20into%20an%20agreement. (last visited Jul 10, 2021)

[7] (1890) ILR 13 Mad 214

[8] 1916 MWN 368

[9] Section 16 India Code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00035_187209_1523268996428§ionId=38619§ionno=16&orderno=16#:~:text=%2D%2D%20(1)%20A%20contract%20is,unfair%20advantage%20over%20the%20other. (last visited Jul 10, 2021)

[10] AIR 1938 Bom 97

[11] Section Details India Code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00035_187209_1523268996428§ionId=38620§ionno=17&orderno=17 (last visited Jul 10, 2021)

[12] AIR 1959 MP 8

[13] AIR 1984 MP 126

[14] 1980 AIR 1447, 1980 SCR (3) 485

[15] AIR 1990 SC 1173

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...of documents.”15. The essentials of contract set out in Section 10 above are:(1) Free consent of the parties(2...interests.17. “ Consent ” and “ Free Consent ”, with which we are really concerned in this appeal, are defined in Sections 13 and 14 of the Act as under...:“13. Two or more persons are said to consent when they agree upon the same thing in the same sense.14. Consent is said to be free when it is not caused by...

.... As per Section 90 of the Indian Penal Code, if consent is obtained by playing fraud with false promise to marry with the prosecutrix, then it cannot be said to be free ... consent . Free consent / willingness is sine qua non to say that physical relations were made with the consent of the prosecutrix. Since consent was obtained by playing fraud, therefore, it cannot be said...to be a free consent . Prima facie offence under Section 376 IPC seems to have been made out against the petitioner. No ground is made out for anticipatory bail. Dismissed. However, it...

...full and free consent in the Petitioner being granted the Letters of Administration with Will. One of the heirs Mr. Ravi Baldev Raj Chopra died on 12 November, 2014 and his heirs who have been...mentioned in paragraph 9 of the Petition at Sr. No. 2a to 2d have also filed their consent Affidavits giving full and free consent for Letters of Administration with Will annexed to be granted to the...uncontested Petition in view of the heirs of the deceased having given their consent Affidavits given full and free consent for the Letters of Administration with will to be granted to the Petitioner....

...agreements and declarations made by the plaintiff were not binding on him as it was not obtained by free consent and free will and in the normal course of events.4. In...finding that these documents were not obtained by free will and free consent and in the normal course of events, to say the least, is an inferential conclusion not supported by any evidence...asked for to apply for extension. The basic stand of the plaintiff-respondent was that the extensions had been sought for and supplemental agreements were executed not on the free will and free ...

...their free will and free consent for executing any document in respect of their properties. It is alleged that defendants 1 to 6 have prevailed upon defendants 7 and 8, and by dominating their will...written statements contending that Exhibits-B1 to B6 were executed by defendants 7 and 8 with their free consent and they have sufficient mental capacity and strength to exercise their free will and... free consent . According to them, the plaintiffs have no locus standi to file the suit, and the suit as such is not maintainable.6. Defendants 7 and 8 have filed a separate written...

...and final settlement on free consent of the de facto complainant has been effected by them. Learned Magistrate has now sent a report, after conducting an enquiry as directed, stating that he is...satisfied that the parties have settled all disputes and that such settlement was arrived on free consent of the de facto complainant. Having regard to the fact that the criminal proceedings have arisen on...

...(1) 5,87,400/- 4,41,760/- . 1,45,640/- .6. , - . . - - .7. .. 2(1) , 5,87,400/- . . 1 2 . - . . Free Consent . Free Consent . . . . . 8...

...down the request on the ground that the petitioner being in custody is not in a status to give free consent . Free consent is defined under Section 14 of the Indian Contract Act..., 1872, in the following terms:- Consent is said to be free when it is not caused by - 1 W. P. No. 4056/ 2017 (Manoj Singh Vs. State...status to give free consent . Free consent is defined under Section 14 of the Indian Contract Act, 1872, in the following terms:- Consent is said to...

.../ respondent No.2 if the matter has been settled/ compounded by him with the petitioner with his free consent without any fear or pressure. He informs that the dispute has been settled with the petitioner...amicably with his free consent . He has no objection to the disposal of the present revision petition as compounded / settled. 4. I am satisfied that the matter has been...compounded by the complainant with the petitioner with his free consent and pursuant to the settlement the payments have since been made. 5. Since the matter has been...

...the free consent and volition of the parties keeping their best interest under consideration. 6. After enquiry with the parties, it is convinced to the Court that the parties have...settled the matter and entered into a compromise out of their free consent , volition and keeping their best interest under consideration. 7. The present appellants have...convinced that the parties have compromised the matter keeping their best interest under consideration and with free consent , the appeal can be disposed of in terms of the compromise petition. Accordingly...

...for the appellant-accused was that the prosecutrix VW, PW 6 had voluntarily and with her free consent , accompanied the appellant-accused Jarnail Singh. It was contended that in actuality it was the...the alleged free will and consent of the prosecutrix VW, PW 6 individually, so as to effectively determine the veracity of the submissions noticed above.16. Insofar as...prosecutrix VW, PW 6 was a minor at the time of occurrence on 25-3-1993, and had concluded, that even if she had accompanied the appellant-accused Jarnail Singh on 25-3-1993 of her own free consent , and even...

...that the settlement was not with the free consent of the complainant - Ms. Jyoti. Specific observations in the order dated 07.11.2012 need reproduction:“3. It has also been stated by Mr...the petitioners No. 1 to 5. Status report filed by the State indicated that the settlement was not with the free consent of the complainant - Ms. Jyoti.4. Considering the facts and...settlement was not with the consent of the complainant - Ms. Jyoti. She was directed to appear in person to ascertain if the settlement had taken place with her free consent . Today, the complainant...

...the Court:-“I am major. I have performed my marriage with the petitioner Parwinder Singh son of Kulwant Singh with my free consent and without any kind of pressure. My parents have...statement that, she is major and was stated to have performed her marriage with the petitioner, with her free consent & without any kind of pressure and her parents have illegally detained her...petitioner & detenue & the validity of their marriage or otherwise, detenue Harjit Kaur is free to accompany with the petitioner, if she so desires. Therefore, the instant petition for Habeas Corpus is disposed of accordingly....

...intercourse without her free will and free consent .3. This application for regular bail is opposed by the learned Public Prosecutor on the ground that investigation is still in progress, and that...that she is mentally alright. Whether she is mentally alright or not, a case of sexual intercourse without free consent is well made out prima facie by the prosecution records. On a perusal of the...

.... She has expressed before Registrar Judicial (I) that she has entered into compromise with free consent . When matter is resolved between the parties and offence is compoundable with permission of the...the appellant is compoundable with permission of the Court and when complainant is ready to do compromise with free consent , looking to their future peaceful relations, compromise is accepted. I.A.No...

...whether the de facto complainant has voluntarily and on free consent settled the disputes giving rise to the prosecution of the petitioners/Accused. Learned Magistrate was directed to send a report after.... Report of the Magistrate would indicate that he was satisfied on the enquiry conducted that the second respondent/de facto complainant has voluntarily and on free consent entered into a settlement...

.... It is submitted by learned counsel for the petitioners that both the petitioners are major and they have been living together for last one month with their free consent . Copies of marks sheet...living together for last one month with their free consent but the respondent no.5, who is father of petitioner no.1 is creating hindrance in peaceful living of petitioners. It is also submitted that...

...marrying her and that the High Court erred in holding that the victim was a consenting party and that even if the victim consented to sexual intercourse, it was not free consent but was given on the...give her free consent to the act of sexual intercourse but it was consent given under misconception of fact?15.3 (iii) Whether the trial court was right in holding that...under Section 376 IPC stands proved. Vide order dated 5-10-2005 of the Sessions Judge, the accused was convicted of the offence of rape under Section 376 IPC on the ground that the consent given by PW...

..., unless the proposal prescribes the manner in which it is to be accepted…”. Under Section 10 “all agreements are contracts if they are made by the free consent of parties competent to contract, for a..., the agreement must be made by the free consent of the parties”.12. We find no force in the contention of Shri Nariman that the appellant had submitted to the jurisdiction of...

...cohabitation on that consideration and not by free consent . The petitioner committed the offence under Section 376 of the Penal Code, 1860. The trial court having taken cognizance, the petitioner...

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Free Consent in Contracts and its components

Section 14 defines free consent by stating that 'consent is said to be free when it is not caused by:.

• Coercion, as defined under Section 15
• 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 the provisions of sections 20, 21, and 22.

Concept of consent

Kinds of violations of free consent, according to the indian contract act, 1872, the free consent of parties to a contract is not obtained if it is adulterated by:, consent is said to be caused by coercion when it is obtained by threatening or pressuring the subject by either of the following techniques:.

• Committing or threatening to commit any act forbidden by the Indian Penal Code: A person can only be held for coercion if he threatens to commit an act that is forbidden by the IPC and uses that threat in order to attain the consent of the plaintiff. If a person attains consent by threatening to do something that is legal according to the IPC, he cannot be held for coercion. In Ranganayakamma vs. Alwar Setti (1889) The question before the Madras High Court was regarding the validity of the adoption of a minor aged 13 years, by his widowed mother. On the death of her husband, the husband's dead body was not allowed to be removed from her house by the relatives of the adopted boy until she adopted the boy. It was held that the adoption was not binding on the widow, as she was coerced into doing so.  
• Unlawfully detaining or threatening to detain any property: Consent can be said to be caused by coercion if it is induced by illegal confining or threatening to hold a legal property of the plaintiff, by the defendant. Essar Steel Ltd vs. Union of India (2006) A company entered into a contract with a Government company Gas Authority of India Limited (GAIL), for purchase of gas. The buyer company constructed the pipeline for the carriage of gas and was also responsible for its maintenance. GAIL demanded from the company transportation charges. The demand was also found to be against the price structure fixed by the Government. It was held that GAIL was acting against the Government pricing order. It was held that GAIL was employing coercion, and was withholding a lawful property of the buyer company (the gas bought). GAIL was not allowed to charge extra transportation charges.

Threat to commit suicide as coercion

• 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 a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.  
• In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another—where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.  
• Where a person who is in a position to dominate the will of another enters into a contract with him and the transaction appears, on the face of it or on evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

Real or Apparent authority:

Fiduciary relationship:.

• 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 act fitted to deceive;
• Any such act or omission as the law specially declares to be fraudulent.
• Knowingly, or
• Without belief in its truth, or
• Recklessly careless whether it be true or false.

Active concealment of facts

Misrepresentation.

• The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true. A statement is said to be warranted when it is received from a trustworthy source. Unwarranted statements are statements that are not necessarily true with respect to the information that the speaker has. Mohunlal vs. Gungaji Cotton Mills A person (say A) told the plaintiff that a person (say D) would be the director of a company. 'A' had obtained this information not from 'D' directly, but from another person, called 'L'. The information proved untrue.  
• Any breach of duty which, without intent to deceive, gains an advantage to the person committing it, or anyone claiming under him; by misleading another to his prejudice, or to the prejudice of anyone claiming under him. Such cases in courts of equity are stated as cases of 'constructive fraud'; in such cases, there is no intention to deceive, but the circumstances of the cases are such that they make the party which derives a benefit from the transaction, answerable as if he had acted with intent to cause fraud or deceit. Oriental Bank vs. John Fleming The plaintiff was given the impression by the defendant that a deed contained nothing but formal matters already settled between them. The plaintiff, having no time to read the contents of a deed signed it. The deed, however, contained a release in favor of the defendants. The Court set aside the agreement for the consent had been taken by misrepresentation.  
•  Inducing mistake with respect to the subject matter: Causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement. Illustration: 'A' told 'B' that his radio is in good condition, because of the confidence he had in 'A', 'B' bought the radio from him. The radio did not work properly after some time, 'B' thought he was misled by 'A', but 'A' believed his radio was in good condition and had no intention of deceiving him. So, here misrepresentation is in the part of 'A', because he did not know that the radio is not working properly.

There are three primary types of misrepresentation:

Fraudulent representation:, negligent misrepresentation:, innocent misrepresentation:, supplementary provisions:, mistake of law:, copper vs. phibbs (1867).

• Mistake of fact: The Latin maxim 'Ignorantia Facti Excusat' means that ignorance of fact can be an excuse under the law. Under Section 20 of the Indian Contract Act, 1872, a contract is said to be void when both the parties to the agreement are under a mistake as to a matter of fact. A mistake of fact can be one-way or both ways.
• The mistake must be committed by both the parties, that is, the mistake must be mutual.
• The mistake must be regarding some fact.
• It must relate to a fact which is essential to the contract.
• A, intending to deceive B, falsely represents that five hundred bails of indigo are made annually at A's factory, and thereby induces B to buy the factory. The contract is voidable at the option of B.
• A, by a misrepresentation, leads B erroneously to believe that five hundred bails of indigo are made annually at A's factory. B examines the accounts of the factory, which show that only four hundred bails of indigo have been made. Nevertheless, B buys the factory. The contract is not voidable on account of A's misrepresentation.
• Advocatekhoj publication on voidability of contracts.
• ipleader publication by Soma Mohanty of KIIT School of Law.
• ipleader publication by Avni Kaushik on the concept of free consent in Indian Contract Act.

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What Is Free Consent in Contract

You might have already studied the essential elements of a contract . Therefore, you know that the free consent of all the parties to a contract is one of the necessary elements of a valid contract as per the requirement of section 10 of the Indian Contract Act .

In this law note, we will discuss the meaning of free consent in contract law . We’ll also better understand consent and free consent with the help of examples.

Meaning of Consent and Free Consent Under Contract Law

Validity of contract without free consent, factors violating free consent.

Consent and free consent are often misunderstood as similar terms, but both the terms are different under the Indian Contract Act. Let us understand the meaning of consent and free consent one by one.

Meaning of Consent in Law.

Free consent in contract law..

Consent occurs when parties mutually agree to form a contract with each other. Consent given under pressure will not be considered valid consent, and therefore the contract will become void.

Further, consent is when two or more individuals agree on the same thing in the same sense. According to section 13 of the Indian Contract Act , the principle of consensus-ad-idem (the meeting of minds) is very important while making a contract. It means that the person who is accepting the offer must accept it in such a way as it was told to him by the offerer without any interpretations or changes.

Example of consent : Z agrees to sell his house to X. Z owns two houses and wants to sell his flat. X thinks he is buying a villa. In this case, Z and X did not agree on the same thing in the same sense. As a result, there is no consent and, therefore, no contract.

Free consent is defined under section 14 of the Indian Contract Act, 1872 . Consent is free when:

• It is free from coercion.
• A contract is not made under undue influence.
• A contract is not made under fraud.
• A contract is not made by misrepresentation.
• A contract is not made by mistake or fact.

Example of free consent : Z was a leader of a political party. He asked X to sell his car as Z’s son liked his car. X agreed to sell due to fear that if he denies, Z can cause harm to his car. Here, X consented to sell his car, but the consent was not free as it was caused by undue influence. Hence, there would be no valid contract between the parties.

Free consent is an essential element for a contract to be valid. Without free consent, a contract becomes voidable at the option of one party. This means if the consent obtained by any of the parties for a contract is not free and is caused by either coercion, undue influence, fraud or misrepresentation, then the party has a right to make the contract voidable at their wish.

Five primary factors that violate free consent in a contract are:

• Coercion in Contract Law. (Section 15)
• Undue Influence in Contract Law. (Section 16)
• Fraud in Contract Law. (Section 17)
• Misrepresentation in Contract Law. (Section 18)
• Mistake in Contract Law. (Sections 20, 21 and 22)

Now, let us study each one of them separately.

1. Coercion in Contract Law. (Section 15)

Coercion is a threat or force used by one party against another to compel him to enter into an agreement. Contracts made under coercion are voidable at the option of either of the parties to contract. Read section 15 of Indian Contract Law.

Illustration : Z threatens to shoot X if X does not let out his house to him. X agrees to do so. The consent has been obtained by coercion.

The act constituting coercion need not necessarily be performed by a party to contract. It may proceed even from a stranger to the contract, and likewise, it may be directed against anybody, not necessarily the contracting party.

Illustration : Z threatens to shoot Y, a friend of X if X does not let out his house to him. X agrees to do so. This is a case where X’s consent was obtained by coercion.

An Act Will Amount to Coercion if the Following Essentials Are Fulfilled:

• There must be a clear utterance of threat.
• The threat should be to do something illegal under the Indian Penal Code .
• It must be uttered to cause the other party to enter into an agreement.

Burden of Proof.

The burden of proof of coercion lies on the party who wants to set aside the contract and make it void. Coercion is also known as duress  in English law.

2. Undue Influence in Contract Law. (Section 16)

When one of the parties is in a position to dominate the will of the other and utilises that position to gain an unfair advantage over the other, the contract is said to be induced by undue influence. Read section 16 of Indian Contract Law.

Illustration : Z is a rich landowner and Y a poor farmer. Y has a jersey cow valued at 5,000. If Z uses his authority and forces Y to sell the cow for 2,000, he would be using undue influence.

As per section 16(2), A person is deemed to be in a position to control the will of another under the below-mentioned circumstances:

• Where he holds a real or apparent authority over the other, i.e. relationship between master and servant, Income Tax Officer in relation as assessee.
• When the party stands in a fiduciary relationship, i.e. a relationship of trust and confidence with the other, like the relation between an advocate and client .
• When a person’s mental capacity is temporarily or permanently impaired due to age, sickness, or mental or physical distress, the party enters into a contract with that person. Such a relationship exists, for example, between a doctor and his patient.

However, there are relationships where such information cannot be deemed to be undue influenced, like the relationship between husband and wife or between mother and daughter.

Illustration : Under the undue influence, an elderly man who was ill and feeble was forced to sign a contract to pay an expensive sum to the doctor for his care and treatment. The court will set aside the contract because it was made under undue influence.

3. Fraud in Contract Law. (Section 17)

The term fraud includes all acts committed by a person to deceive another person. Read section 17 of Indian Contract Law.

Fraud under the Indian Contract Act includes:

• A false suggestion as to a fact known to be false or not believed to be true : A false statement made recklessly without inquiring whether it is true or false would amount to fraud. Illustration : If Z sells a shoe to Y and says that it is made from calf leather while in reality the shoe is made from ordinary leather, Z would be committing fraud, and the contract would be voidable at the option of Y.
• The active concealment of fact : if a person conceals or hides a fact which is material to the contract and he must disclose it, but he doesn’t, it will be a case of fraud.
• A promise made without any intention of performing it.
• Any other fraudulent act was done to deceive someone.
• Any act or omission declared to be fraudulent by law.

Elements of Fraud Under the Indian Contract Act.

• Fraudulent work can be done by a party or his agent.
• The object of the fraudulent act must be to deceive the other party.
• The fraud must be against the party or his agent.
• The other party must have suffered some loss.

Effects of Fraud Under the Indian Contract Act.

A party whose consent to an agreement was caused by fraud has two remedies:

• He may rescind the contract, or
• He may insist that the contract shall be performed in such a way as it would have been performed if the representation would be true.

Illustration : Z fraudulently informs Y that Z’s estate is free from encumbrance. Y, therefore, buys the estate and later comes to know that the estate is subject to a mortgage. Y may opt-out of the contract or insist on it being fulfilled, and Z must repay the mortgage loan.

4. Misrepresentation in Contract Law. (Section 18)

Misrepresentation means false representation made innocently with an honest belief as to its truth by a party without any intention to deceive the other party. Read section 18 of Indian Contract Law.

Illustration : Z intends to sell his cow to Y and says. “My cow is perfectly sound”. Z genuinely believes the cow to be sound, although he does not know that the cow had fallen sick the previous day. Y thereupon buys the cow. There is misrepresentation on the part of Z.

Effects of Misrepresentation in Contract.

When a misrepresentation has been made, the aggrieved party has the following alternatives:

• He may avoid or cancel the contract.
• He may stick to the contract and insist on the misrepresentation being rectified.

5. Mistake in Contract Law. (Sections 20, 21 and 22)

Mistake may be defined as an erroneous belief concerning something. Mistakes may be of two types: Mistake of Law and Mistake of Fact .

A. Mistake of Law (Section 22).

Mistake as to the law is defined in certain categories mentioned below.

• Mistake as to the law of the country : Every person is expected to know the law of the country, and ignorance of the law is no excuse.
• Mistake as to foreign law : A citizen of a country is expected to know the law of his own country, but he is not supposed to know the law of any other country. If a person commits a mistake as to the law of a foreign land, such a mistake may be excusable as it is deemed to be a mistake of fact, and the contract becomes void.

B. Mistake of Fact (Sections 20 and 21).

Mistake of fact is of two types:

• Unilateral Mistake : If the mistake is on the part of one party to the contract as to a matter of fact essential to the contract, the contract remains valid unless the mistake is not the result of fraud or willful misrepresentation on the part of the other party. Illustration : A wants to sell his car to B for Rs. 2,80,000, but by mistake, he makes an offer for Rs. 2,60,000, which B accepts. A cannot cancel the contract on the ground that he has committed a mistake about the price.
• Bilateral Mistake : When both the parties to a contract are under a mistake as to a matter of fact essential to the contract, it is a case of bilateral mistake, and such contracts are void.

Read Sections 20, 21 and 22 of the Indian Contract Act.

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Free Consent under Law of Contracts

Table of Contents

FREE CONSENT UNDER LAW OF CONTRACTS

Section 10 of the Indian Contract, 1872 sets out the various essential conditions of a valid contract . All agreement is a valid contract if they fulfill the following conditions:

• Lawful Consideration
• Lawful Object
• Competent to contract
• Free Consent
• Not expressly declared void

Hence, the aforementioned section makes free consent an essential condition for any contract to be valid and enforceable by law. Section 13 of the Indian Contract Act , 1872 defines Consent and lays down the maxim ‘Consensus-ad-idem’ which means when parties to the contract agreed upon the same thing in the same sense.

Section 14 lays that consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation, or mistake.

Coercion (Section 15, Indian Contract Act, 1872)

Section 15 deals with Coercion. Coercion basically means forcing a person to enter into a contract. As per the provision, Coercion means committing or threatening to commit any act forbidden by the law or unlawfully detaining or threatening to detain any property to cause any person into a contract.

Case Law: Chikkam Ammiraju vs. Chikkam Seshamma [(1917) 32 MLJ 494 ] [1]

This is a case including the coercion wherein the question before the Court was whether coercion could be brought about by a threat to commit suicide. In this case, a husband threatened to commit suicide and thus induced his wife and son to execute a release deed in favor of his brother in respect of certain properties that they claimed to be their own. It was held that a threat to commit suicide amounted to coercion and the deed was voidable.

Undue Influence (Section 16) 

Section 16 deals with the vitiating element of undue influence. At the point when one party to the contract is in a position to dominate the other party and such predominance is used to impact the party to get an unjustifiably favorable benefit, it refers to Undue Influence. Such authority could be a real or apparent or fiduciary relationship between the two parties.

The contract which is caused by undue influence is voidable at the option of the party whose consent was so obtained. Also, the burden of proof is upon the dominant party to show that there was no presence of influence.

Case Law: Wajid Khan vs. Raja Ewaz Ali Khan [(1891) ILR 18 CAL 545] [2]

In this case, an old and illiterate woman conferred a high monetary benefit onto her manager without any valuable consideration and it was held that undue influence was applied. The burden of proof was on the manager to show that it was a bonafide transaction and no undue influence was exercised.

Fraud (Section 17)

Section 17 deals with the consent to a contract caused by Fraud. The other word for Fraud is Deceit and when one party makes bogus statements with full knowledge and not carelessly, it adds up to fraud. The fraud is said to be done, if:

• A false statement is made and the person making it does not believe it to be true.
• A promise made without any intention of performing it.
• The active concealment of fact
• Any other act fitted to deceive

On account of fraud, it is important to build up that some misfortune has been caused because of the fraud committed. There can be no fraud if there is no damage. Additionally, the assertion made as the fraud must be a fact and not a sentiment.

Case Law: Shri Krishan vs. Kurukshetra University [1976 AIR 376] [3]

The plaintiff was a candidate for the LLB exam. The candidate was short of attendance and failed to specify it in the admission form of the exam. Neither the head of the department nor University authorities tried to conduct a check and find the reality. The Court held that the candidate had not committed any fraud and there was no power in the University to withdraw the candidature of the candidate.

Misrepresentation (Section 18, Indian Contract Act, 1872)

Section 18 deals with the vitiating element of the Misrepresentation. The portrayal of the bogus and incorrect statement is a misrepresentation. The contrast between Fraud and Misrepresentation is the component of intention. Misrepresentation is unintentional and the party making such a statement assumed it to be true. The contract in which consent has been caused by the misrepresentation is voidable at the option of the person whose consent was so caused.

Case Law: Long vs. Lloyd [(1958) 1 WLR 753] [4]

The defendant, in this case, sold his lorry to the plaintiff by making a representation which was bogus that the lorry was in good condition. However, after buying it the plaintiff discovered serious defects in the lorry, and instead of rescinding the contract, accepted the defendant’s offer of half the cost of repairs. Subsequently, the lorry broke completely, and the plaintiff wanted to rescind the contract however, the court held that this right did not exist anymore as the plaintiff had affirmed the contract by accepting to share costs.

A mistake is an incorrect belief but innocent in nature. The mistake could be either be a mistake of law or a mistake of fact. The mistake of law is basically ignorance of the law and it is not recognized by the Indian Contract Act. On the other hand, the mistake of fact is an error in understanding or ignorance of fact. Such a mistake could either be unilateral or bilateral.

Consent is an integral part of the contract. People tend to rely on the defenses if they are being charged for coercion, undue influence, etc. In the cases of coercion, undue influence, fraud, and misrepresentation, the contract tends to be voidable at the option of the aggrieved party. However, in case of mistake, the parties can only avoid the contract in situations where there exists a bilateral mistake of the party with respect to the important facts of the agreement.

[1] . https://indiankanoon.org/doc/1604481/

[2] . http://14.139.60.114:8080/jspui/handle/123456789/7386

[3] . https://indiankanoon.org/doc/353075/

[4] . https://www.casemine.com/judgement/uk/5a8ff87860d03e7f57ec1081

Author: Ayush Patria, Sangam University, Bhilwara (Rajasthan); 3rd Year; Law Student

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• Free of Consent

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

Doctor and patient

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 

Trusty and beneficiary

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. 

Furthermore, you can avail all the well-researched and good quality chapters, sample papers, syllabus on various topics from the website of Vedantu and its mobile application available on the play store.

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• Contract Law
• Contracts and Agreements

Free Consent

This article is written by Soma-Mohanty of KIIT School of Law, Bhubaneswar. In this article, she has mentioned about the essentials of free consent, exceptions and some case laws.

Table of Contents

Meaning of consent

• 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

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 

• “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.
• “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.

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.

Elements Vitiating Free consent

• When a person commits or threatens to commit an act which is forbidden under the Indian Penal Code, or detains an object unlawfully or threatens to do so with the intention to force a person to enter into a contract, then it is said to be coercion.
• Illustration:

“A” cause “B” to enter into an agreement which is forbidden under the Indian Penal Code. “A” had done the act when an English ship was on the high seas. The “A” sues “B” for breach of contract in Mumbai.

This agreement was considered to be void as “A” had employed coercion, though Indian Penal Code was not in force at the place where the act was done.

Effect of coercion

When the agreement made is found to be made out of coercion, then the contract would be rescinded or cancelled, due to which both parties are released from their obligation to perform their duties as per the contract.

Coercion and duress distinguished

Is a threat to commit suicide coercion?

• No, a threat to commit suicide does not amount to coercion. 
• In the case of Ammiraju v Seshamma ,[2] it was seen that there was a threat by the husband to commit suicide, and he demanded his wife to release the property. It was seen that the wife was prejudiced and it can’t be forbidden by law. So here the threat to commit suicide by the husband amounts to coercion on the wife.
• But this Section15 of the Indian Contract Act can’t provide relief in this matter in mere prejudice that a person is subjected to.

Undue influence

• When a contract is made between two parties and one of them is in the position to dominate the will of the other party and takes unfair advantage of the position, then the contract is said to be made out of undue influence.

“A” an old person appoints “B” as his attendant and “B” is his nephew as well. “B” demands a share of his property and “A” agrees to pay him. In this situation, “A”  is under the undue influence of “B”.

• The principle of undue influence is based on the doctrine of equity.

Salient features

• Either of the parties should be in a state to dominate over other
• The party who dominates should have taken undue advantage of his position

Parties that can be affected by undue influence

• Real and apparent authority
• Fiduciary relationship
• Parent and child
• Adult child and parent
• Husband and wife
• Lawyer and client
• Doctor and patient
• Trustee and beneficiary
• Creditor and debtor
• Landlord and tenant
• A person whose mental capacity is low

Effect of undue Influence

• When an agreement is caused due to the impact of undue influence, can be considered void at the opinion of the party whose consent was so caused, according to Section 19A of the Indian Contract Act.

Burden of proof

• It is required to prove that the person dominating actually took undue advantage of the person and it should be proved that the person was in such position to dominate.
• Mere transfer of gift from one relative to others would not amount to undue influence.

A transaction with parda-nashin women

• When a woman can be viewed from the screen or is placed behind the screen i.e, veiled is called pardanashin women.
• The protection for pardanashin women is been rooted in the principle of equity and good conscience.
• Special laws are made for pardanashin women because they are subjected to ignorance, infirmity, illiteracy, etc and are thus easily influenced.
• The burden of proof should be provided against the person who is transacting with pardanashin women. He has to prove that the transaction had taken place with the free will of the women and her decision was taken by her without any enforcement and she was made aware of the provisions mentioned in the document of transaction.
• The explanation of the whole transaction won’t be enough to establish the burden of proof.
• In the case of Tara Kumari v Chandra Mauleshwar Prasad Singh ,[3] it was delivered that the essential to establish the burden of proof is that the party executing them should be a free agent and the woman should be informed, through what she is going through.
• In the case of Kuna Dei v Md Abdul Latif[4], it was delivered that showing of the document to the pardanashin women won’t be enough to establish the burden of proof. Thus, he has to show that the women was explained clearly the facts in the document of the transaction.

The distinction between coercion and undue influence

• Fraud means an action that includes the false assertion of facts, concealment of facts and any promise with the intention to deceive a person.
• According to Section 17 of the Indian Contract Act , 1872 when a party contracts with the other party with the intention to deceive amounts to fraud. The party may directly make the contract with the other party or it can be done with the help of an agent even.
• illustration

“A” agrees to sell his horse to “B”. “A” had the knowledge that the horse is of unsound mind and did not inform it to “B”. “B”, asked “A” if he does not deny the fact then “B” would consider the horse to be sound and “A” kept silence to it. In this case, mere silence amounts to the agreement, thus “A” performed a fraudulent act.  

Characteristics

• When a party conceals the fact from the other party
• When a party promises to perform an act for the other party but has no real intention to fulfil the promise.
• The false representation of facts has been made to enter into the contract.
• The omission of any act which is considered to be fraudulent in the eyes of law.

Does silence amount to fraud?

• Mere silence does not amount to fraud. But when there is a duty to speak and silence is equivalent to speech then it amounts to fraud.
• When two parties made an agreement, the parties are not compelled to disclose every fact to the other party. It is the duty of the other party to enquire about things rather than expecting the party to come and disclose the fact.
• When a person keeps silencing on the facts which would deceive the other person, then the person can be convicted of fraud.
• In the case of Jaswant Rai v Abnash Kaur [5], it was found that the vendor concealed the fact that the material to be sold was defective. Then it was held that the disclosure of the facts amounted to fraudulent activity of the vendor.
• In the case of Banque Financiere de la Cite SA v Westgate Insurance Co Ltd[6], it was delivered in the context of negotiation, the party is not obliged to speak. 

Effects of fraud

• The contract raised out of fraud is a voidable contract.
• The party deceived has the right to revoke the contract.
• The party is liable to recover the damages due to the fraudulent contract

Misrepresentation

• Misrepresentation means a false representation of the fact.
• According to Section 18 of the Indian Contract , Act Misrepresentation is the stating of deceiving information which results in the assertion of the other party into entering into a contract and subsequently undergoing loss. The information, however, presented by the guilty party is a result of genuine belief about the matter. Misrepresentation is said to be committed Firstly when the person deceiving positively asserts not warranted information to another misleading them somehow. Secondly, there is a breach of duty which has caused the prejudice of one or another to be at stake. Lastly, a mistake has been committed by another because of the act or information of the one misrepresenting them.
• It should be mentioned that the false statement was of material fact and not mere words.
• When a party makes a misrepresentation to the other party, it should be proved that at the party believed the fact to be true.
• The party should have misrepresented the facts to induce the other party to enter into a contract.

There are two kinds of misrepresentation

Negligent misrepresentation

• When misrepresentation occurs due to lack of any reasonable ground and carelessness then it is known to be a negligent misrepresentation.
• Negligent misrepresentation is established only when the representative owed a duty to the representee to handle carefully.
• A person would be liable only when he had neglected the duty mentioned in particular.
• The responsibility exists between the two parties even when there is no fiduciary relationship.

Innocent misrepresentation

• When the representation is based on good grounds to believe and it lacks negligence and fraudulent intention, then it is said to be an innocent misrepresentation.
• When a person enters into a contract with innocent misrepresentation has the right to revoke the contract but is not entitled to damages suffered.
• A contract won’t be void unless reasonable grounds are provided. Proving innocence in misrepresentation would be enough to establish the fact.

Effect of misrepresentation

When the party who has suffered due to the misrepresentation while entering into a contract, can opt to cease the contract. There are two remedies provided to the party either to rescind the contract or claim damages.

The claim of damages means that the contract is left intact and the party is to be subjected to money damages during the suit.

Suit for rescission is to cease the performance of the contract that is to restore the party to the original position.

The distinction between fraud and misrepresentation

According to Section 20 of the Indian Contract Act , a contract is declared void when a mistake is caused by both the parties that bilateral mistake, which violates the essentials to an agreement.

“A” made agreement with “B” to sell the goods and the agreement was done. “A” was not aware of the fact that the goods are perished due to some reason. In this case, the contract would be void because the basis on which the contract was made does not exist.

Mistake of law

People should have minimum knowledge about the law, they should be aware of the fact that which act they should restrain from doing and which they are ought to do. And there would be no remedy provided or excused under the fact of mistake of law in these circumstances.

In the case of Ram Chandra v Ganesh Chandra[ 7], it was seen that the complainant entered into an agreement of lease of coal mining with the respondent. As per the agreement, the complainant made payment in advance to the respondent. But the Privy Council and the decision of the Calcutta High Court questioned the understanding of the law between the parties. Thus the complainant refused to continue the contract and sued the respondent for the refund. Taking precedent of Cooper v Phibbs, it was held that the complainant would be entitled with the refund paid by him.

Mistake of fact

When there is a bilateral mistake causing a contract void, it is subjected to a mistake of fact and not to mistake of law. When there is a misunderstanding between the parties or omission of facts which leads to the mistake, is said to be a mistake of fact.

When both parties commit a mistake in the contract under the mistake of facts, the mistake is considered as a bilateral mistake. This happens due to the lack of meeting of minds, which is an essential element to constitute free consent. Thus the contract is made void.

There are two types of bilateral mistake

“A” agrees to sell his car to “B”. but it was found that his car was stolen and he was not aware of the fact while making the agreement. Thus this contract would be considered void.

Bilateral mistake as to the subject matter

Existence of subject matter.

When both parties have made an agreement on a subject matter which does not exist, then the contract would be considered void.

Quality of the subject matter

When both parties have made an agreement on a subject matter and it is found that the quality differs from the one which was mentioned. But in the case of bilateral mistake, the contract would be considered void.

Identity of subject matter

When both parties have made an agreement on the identity of a subject matter and it differs than the contract ceases to be void.

Mistake as to the possibility of performing the contract

Physical impossibility.

When an agreement is made and it is found that the subject matter is not available anymore, then it becomes impossible for the parties to execute their part of the obligation. This is considered to be a physical impossibility to perform, thus the contract becomes void.

Legal impossibility

When an agreement is done between two countries, but it is seen that war arises between the countries. Thus the contract between the countries becomes legally impossible to be carried out.

“A” one country enters into a contract with “B” another country to export petroleum with an agreement for 20 years. But after 10 years it was seen that there was a situation of war arising, thus all the internal export was stopped. In this case, “A” is legally bound to end the contract with “B”.

To know more in detail about Free Consent, Please Click Here.

[1] [1949] 2 AII ER 1107

[2]  (1917) 32 MLJ 494

[3] (1932) 34 BOMLR 222

[4] AIR 1994 Ori 111

[5] ILR 1974 Delhi 689

[6] [1989]2 AII ER 952

[7] 39 Ind Cas 78

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Free Consent

For a contract to be valid, it is necessary that the parties provide free consent to be terms. If the contract were not with free consent, the contract would be voidable by the other party whose consent was not taken or was not free. Consent is said to be free only when it is not entered by means of-

• Undue Influence
• Misrepresentation and

Coercion (Section 15 and Section 72)

Coercion refers to any of the following:-

1). Threatening to commit any act prohibited by the Indian Penal Code

2). Detaining not as per law or even threatening to detain any property, with mere the intention of constraining an individual to enter into an agreement.

→ Case study: Ranganayaamma vs. Alwar Setty

A girl aged 13 lost her husband and she was forced to adopt a boy by her in laws. They denied the dead body from being removed for cremation until her she agrees to adopt a boy. The adoption of the boy was kept aside by the court as the consent for the same was obtained by way of Coercion.

Undue Influence (Section 16)

When there is a special relationship between the parties, in such a way, that one person has the ability to influence the other by persuading them and is able to dominate his/her will to get undue advantage, and then he/she is said to have exercised undue influence. Normally Undue influence happens when an individual has authority/power over the other, is in a fiduciary relationship or is a caregiver for a person who is handicapped. Undue influence is also called moral coercion.

Fraud (Section 17 and 19)

Fraud is a misrepresentation done intentionally to deceive a person and force him/her to enter into a contract. The following states where Fraud may happen:-

• Any false advice given by one party to another who does not believe it to be true.
• Hiding of a fact by one party although having knowledge about the same.
• False Promises made with no intention to abide by it.
• Any deceitful act.
• Any act which is not as per law or any omission, which is specifically stated to be fraudulent as per law.

As there is active concealment of facts, the contract is voidable even though the party has the ways and means to identify the truth with ordinary diligence.

→ Case Study:-Peek vs. Gurney

The outline of the organization did not refer to the presence of any document revealing liabilities. This brought about the organization seeming, by all accounts, to be doing great. In the event that the report was uncovered, it would have changed the impression about the organization. The court decided that the non-divulgence added up to misrepresentation and any individual who bought shares on the confidence of this plan could void the contract.

Misrepresentation (Section18-19)

Misrepresentation can be stated as common simple misrepresentation while fraud is known as fraudulent misrepresentation. However, the falsity or inaccuracy is not due to any desire or defrauds the other party. Such happens because of a statement, which is made innocently. The party making such statement believes that to be true. Such can be avoided by the party subject to such misrepresentation.

Mistake (Sections 20-21)

Mistake may be characterized as a wrong conviction from the parties to the contract concerning something relating to the contract. A mistake of fact is pardoned yet a mistake of law is reprehensible.

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Case study: Coerced consent

“Coercion is commonly said to invalidate consent, and that is always true if the source of the coercion is the physician. However, if it is a family member who coerces the patient to consent, the resultant consent may be quite valid and treatment should proceed.” However, there must be clear evidence of mental incompetence. Consider the following case.

Caroline Mace, RN,* had never run into a situation quite like this one. Minnie Jones*, a 76-year-old white female, presented with severe hip pain after a fall in a shopping mall. Alert and oriented, she cooperated fully in all diagnostic tests and care while in the emergency department (ED). However, when the physician told her the diagnosis—fractured hip—she refused to allow further treatment and demanded she be allowed to die with dignity. After attempting to persuade for the better part of an hour, the ED physician called her oldest son for permission to treat her. The son was out of the country, but after a discussion with the physician, he gave permission for treatment.

Caroline was told to give Mrs. Jones her preoperative medication. Flanked by a big orderly, she told Mrs. Jones her physician had ordered a sedative to be given to her before surgery. Mrs. Jones replied, “I don’t want to go to surgery. I’ve heard all about how many people die from broken hips and I’ve decided it’s my time! The doctor said my son gave his permission, but my son has no right to speak for me. I said no, and I mean no. Leave me alone, and let me die in peace!” When Caroline threatened to have the orderly physically restrain her, Mrs. Jones “consented” to the injection.

Once Mrs. Jones dozed off, the nurse sent her to the operating room without a signed operative permit, but with notations that her son had been contacted and had given verbal permission for the surgery. Mrs. Jones made it through surgery with flying colors, but developed pneumonia postoperatively and was put on a ventilator. She didn’t respond to various antibiotics and became disoriented. Her son returned from vacation to find his mother in the intensive care unit with a poor prognosis. Angry and threatening to sue, he said he never would have consented to surgery if he’d known about the complications.

Frankly, I’m both mystified and appalled by the handling of this situation. If the consent process had been honored, the entire situation could have been avoided. Now it’s rife with questionable ethical behavior by many parties: the physician for failing to explain the surgery and enlisting the son’s cooperation in coercing the patient into surgery; the orthopedic surgeon (for certainly there had to be one) for performing the surgery with nothing but an absentee son’s verbal permission; the nurse for threatening Mrs. Jones, medicating her coercively, and failing to report the situation up the line; the son for failing to advocate for his mother and for helping to coerce her—and then threatening to exploit the situation for money. Finally, I fault the hospital for failing to act to protect the patient and for allowing its agents to abuse and coerce her.

• The patient didn’t understand her condition and the likely results of receiving treatment vs not receiving it. Mrs. Jones didn’t realize a broken hip isn’t a terminal condition; there is no indication that anyone explained this to her adequately. She wasn’t in imminent danger of dying, and refusing treatment would be more likely to leave her bedridden and in pain rather than dead. Someone—a physician, surgeon, chaplain, nurse, ombudsman, or family member—needed to make that clear. No one did.
• The physician’s decision to circumvent the patient’s decision by calling her adult son and acting on his verbal consent—in the absence of both an imminent life-threatening emergency or a judicial determination of the patient’s incompetence—is troubling, particularly in light of what appears to be her articulate refusal of treatment. Refusing treatment is not in itself proof of incompetence.
• The nurse’s complicity and willingness to use force are puzzling. Why not contact a supervisor, write an incident report when the patient refused her preoperative medication, or ask for an ethics committee review of this case rather than threaten to have an orderly hold the patient down while she forcibly medicated her?
• The son failed to advocate for his mother. Although at first he was willing to override his mother’s wishes, he reversed his position after she suffered complications. Then he threatened to exploit the situation for money.
• The hospital failed to enforce its own policies and placed itself in legal and regulatory jeopardy. This failure could violate the Center for Medicare and Medicaid Service’s (CMS) Conditions for Participation, placing the hospital’s accreditation in jeopardy. Also, the hospital could be sued for failing to protect the patient’s right to self-determination and bodily integrity.

That’s what I think. What do you think?

(*Names have been changed to protect confidentiality.)

Dr. Leah Curtin, RN, ScD (h), FAAN, is Executive Editor, Professional Outreach, American Nurse Today . An internationally recognized nurse leader, ethicist, speaker, and consultant, she is a strong advocate for both the nursing profession and high-quality patient care. Currently she is Clinical Professor of Nursing at the University of Cincinnati College of Nursing and Health. For over 20 years, she was the Editor-in-Chief of Nursing Management. In 2007, she was appointed to the Standards and Appeals Board of DNV Healthcare, a new Medicare accrediting authority. Dr. Curtin can be reached at [email protected]. Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions or recommendations of the ANA or the staff or Editorial Advisory Board of American Nurse Today . Visit myamericannurse.com/SendLetterstoEditor.aspx to comment on this article.

9 Comments .

I truly believe that the son acted right given the circumstances , he wouldn’t have known the after math of the situation if it was not made clear by the physician. so he acted upon what he thought was best for his mother at the moment given the information he had. On the other hand however I put most of the blame to the physician because his intentions were pure to save the patient, but his communication to the son was so poor that he wasn’t clear on the side effects and as far as respecting the patients right is concerned he did a horrible job. on top of that He didn’t make it clear to the nurse that if the patient refuses the injection that Caroline shouldn’t force it on mrs. Jones. and caroline was supposed to know better not to do that.

Honestly, I think the woman’s desire should have been respected. She might have other things that might be going on, so if they had given her more time to think over her decision and by her own volution decided to or not. It’s her body and old and sane enough to take decision. I also don’t understand the rush for the surgery since it’s not a life threatening situation. Anybody would act like son as nobody would want such an ugly surprises. He also might have acted that way out of guilt knowing he should have advocated for his mother’s will be respected.

As an older american myself, and a nurse, I think it is outrageous that this woman was forced to undergo surgery. Although it is not ideal to have to wait to do surgery on this woman, it would have been far better to have given her some time – and also a chance for some input from friends, family and caregivers to talk with her. Why are we always in such a rush? p.s. It’s good to read some of Leah Curtin’s work again!

This is a classic case where palliative care options were not given to patient and a rush to get to surgery where the medical team dr/nurse/ortho deemed themselves most worthy of making a decision for another person. Case in point of a major failure of our medical system. Hindsight proves if a patient does not buy into and choose a medical option outcomes are not good. She should have been transferred to the floor given comfort care for her pain and schedule to meet with palliative care team

All this is fine, but here is a reality: this woman did not understand that she was not dying…and then she was forced into surgery. I’ll bet her fear and anger and pain all lowered her immune system — and certainly may have affected her will to live!

I will try to answer each person: 1) I think the son should be told everything that happened to his mother, including why she ended up on a respirator; 2)Kathy is right: this case is rife with ethical problems – AND it is the non-transferable legal duty of the physician to get informed consent from the patient. and 3) the patient did not have a living will, and she managed to die despite the respirator…

I also would like to know if this patient had any kind of living will or advance directive after winding up on the ventilator. Did they take her off or did they fight tooth and nail to keep her alive?

The situation is strife with many ethical problems all the way around. Frankly, knowing what I know now as an NP, I’m not sure it was in my purview or scope to obtain the written consent for any procedure; it was the physician/surgeon’s responsibility. It is also their responsibility to explain the risks, benefits, and possible complications of any procedure. No consent, no procedure.

The analysis of the case to date is fine, but it does not go far enough. What does Dr. Curtin think should be done now with the son angry and the patient on a respirator?

Comments are closed.

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Effects on the indoor environment in a stable for horses in winter: a case study, 1. introduction, 2. materials and methods, 2.1. description of the farm, 2.2. data acquisition and processing, 3.1. long-term registration measurement of the basic parameters of the indoor environment, 3.1.1. measurement results of the indoor environment in the stable, 3.1.2. analysis of the indoor environment in the stable during a working day, 3.1.3. analysis of the indoor environment in the stable during a non-working day, 3.1.4. measurement results of the indoor environment in the indoor riding arena, 3.2. measurement of airborne dust concentration, 3.3. measurement of the noise level of the indoor environment in the stable, 3.4. measurement of light conditions inside the stable, 3.4.1. results of the light condition measurements inside the stable during one-day measurement, 3.4.2. results of the daylight factor measurements, 4. discussion, 5. conclusions, author contributions, institutional review board statement, data availability statement, acknowledgments, conflicts of interest.

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Kic, P.; Wohlmuthová, M.; Starostová, L. Effects on the Indoor Environment in a Stable for Horses in Winter: A Case Study. Agriculture 2024 , 14 , 1287. https://doi.org/10.3390/agriculture14081287

Kic P, Wohlmuthová M, Starostová L. Effects on the Indoor Environment in a Stable for Horses in Winter: A Case Study. Agriculture . 2024; 14(8):1287. https://doi.org/10.3390/agriculture14081287

Kic, Pavel, Marie Wohlmuthová, and Lucie Starostová. 2024. "Effects on the Indoor Environment in a Stable for Horses in Winter: A Case Study" Agriculture 14, no. 8: 1287. https://doi.org/10.3390/agriculture14081287

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