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Free consent
Free consent
An agreement is valid only when it is the result of the free consent of all the parties to it.
Consent:
Section 13: when two or more persons are said to consent when they agree upon the same
thing in the same sense.
The circumstances consent is not free, if it is caused by:
i) Coercion
ii) Undue influence
iii) Fraud
iv) Misrepresentation
v) Mistake
Coercion:
Coercion is the committing or threatening to commit any unlawful act, unlawful
detaining or threat to detain any property of a person to the intention of causing any
person to enter into an agreement.
Example:
1. threatens to shoot !, if he does not let out his house to p and ! agrees to do so the
agreement has been brought about by coercion.
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". #n an organi$ation if the accountant refused to give the boo% of account to the
Chairman unless Chairman released him for all liabilities concerning past transactions if
Chairman agrees it also brought about coercion.
Features or requisites:
The act constituting coercion must be directed at any person and not necessarily of
the other party to the agreement.
The act constituting coercion must have been done or threatened with the intention
of causing any person to enter into an agreement
&ere physical pressure is created by one party to another party.
Undue Influence
Definition: a contract is said to be induced by undue influence where
1. 'ne of the parties is in a position to dominate the will of the other and
". &e uses the position to obtain an unfair advantage over the other.(sac.)1*+.
Presumption: section 1*)"+ provides that undue influence may be presumed to e,ist in
the following cases:
1. -here one party holds a real or apparent authority over the other or where he stands in
a fiduciary relationship to the other. .iduciary relationship means a relationship of
mutual trust and confidence. Such a relationship is supposed to e,ist in the following
cases(father and son/ guardian and ward/ solicitor and client/ doctor and patient/
preceptor and disciple/ trustee and beneficiary etc.
". -here a party ma%es a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness or mental or bodily distress.
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Examples:
1. . having advanced money to his son 0 during his minority, upon 01S coming of age
obtains by misuse of parental influence, a bind from 0 for a greater amount than the
sum advanced. . employs undue influence.
". , a man enfeebled by disease or age, is induced by 01s influence over him as his
medical attendant to agree to pay 0 an unreasonable sum for his professional services.
0 employs undue influence.
3. A 2alay woman of great age and wholly illiterate made a gift of almost the whole her
property to her nephew who was managing her estates, the gift was set aside on the
ground of undue influence. #nche 3oriah v. Shai% 'mar.
Consequence of undue influence:
An agreement induced by undue influence is voidable at the option f the party whose
consent was so caused. Such an agreement may be set aside absolutely or, if the party
who was entitled to avoid it has received any benefit hereunder, the court can set it aside
upon such terms and conditions as may seem 4ust.(sec.15A. The aggrieved part y may, if
he desires, treat the agreement as binding and enforce it against the other party.
According to 2adras &igh Court undue influence by a person, who is not a party to the
contract, may ma%e the contract voidable.
Burden of Proof
#f a party is proved to be in a position to dominate the will of another and if it appears
that the transaction is an unconscionable one, the burden of proving that the contract was
not induced by undue influence, lies on the party who was in a position to dominate the
will of the other. #t has been held by 4udicial decisions that the e,istence of a power to
dominate the power of another cannot be presumed in the case of landlord and tenant, and
creditor and debtor. 6ebuttal:
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An allegation of undue influence may be answered or rebutted if the following facts
were proved: The in4ured person had independent advice. All material facts were
disclosed. The consideration was ade7uate.