NAME OF THE STUDENT

SOHAM DEVLEKAR

ROLL NO: FYLL.B 12

ASSIGNMENT TOPIC

FREE CONSENT

Introduction:-
Two people are said to be ‘consent’ when they agree upon the same thing in the same
sense. In latin, this is known as ‘consensus ed idem’ which means meeting of a mind.
The requirement for a contract to be valid is that the consent of the parties has to be
‘free’.S13 therefore, lays down that two or more persons are said to consent, when they
agree upon the same thing in the same sense.
COERCION
According to S.15, coercion is – (i) the committing of any act forbidden by the Indian
Penal Code. (ii) The threatening to commit any act forbidden by the Indian penal code;
or (iii) the unlawful detaining of any property to the prejudice of any person whatsoever;
or (iv) the unlawful threatening to detain any property to the prejudice of any person
whatever; ------ With the intention of causing any person to enter into an agreement.
It is however, immaterial whether the Indian Penal code is or is not in force in the place
where the coercion is employed.
UNDUE INFLUENCE
Where the relationship subsisting between two persons in such that one is in a position
to dominate the will of the other and he uses such position to unduly influence that
others will, the consent is said to be free. Section 16 states that without affecting the
generality of what is stated above one person shall be deemed to be in a position to
dominate another person’s will in the following cases :- 1. If they share fiduciary
relationship i.e. a relationship which naturally elicits respect trust and confidence. eg.
Parents and children
 2. If he has real or apparent authority over the other eg. Boss-employer, teacher-
student (real), policeman and person in the custody (apparently).
3. If by reason of sickness, old age or physical or mental distress the other persons
thinking was affected.
4. Where the transaction is inconciliable on the face of it i.e. the party has taken
undue advantage of the other person’s desperate situation.
FRAUD
In Le Mens terms fraud means cheating. The Indian Contract Act states- the following
things amount to fraud.
1. Sugeestio Ealsi- This means telling lies in order to make a person enter into a
contract.
2. Suppressoveri – It means active concealment of a material fact. The question
which often a rises is that ‘thus mere silence amount to fraud?’ the answer is no
however if there is duty to speak or if the silence itself amounts to speaking then
even silence will amount to fraud.
3. Making of a promise which is not intended to be kept any act specifically
declared fraudulent by some law. Any other act fitted to deceive.
MISREPRESENTATION
Misrepresentation means creating a picture that is inconsistent with reality. The basic
difference between fraud and misrepresentation is that in misrepresentation ‘there is no
intent to deceive’ Section 18 – states that misrepresentation means and includes –
1. A positive assertion, in a manner not warranted by person making it of information
which is not true though he believes it to be true.
2. Any breach of duty without an intend to deceive which gains an undue advantage to
the person to the prejudice of another.
3. Causing, however innocently, a party to make a mistake as to the subject matter of
the agreement.
MISTAKE
Mistake is of two kinds - Mistake of Fact and Mistake of Law. The law says ignorencia
non curat lex which means mistake of law cannot be an excuse. However, ‘Mistake of
Fact’ can be cited as an excuse for consent not being free. However, the mistake also
has to be bilateral i.e. on behalf of both the parties. A unilateral mistake i.e. when only
one of the parties has entered into the contract under a mistaken belief cannot nvalidate
the contract. Therefore, in order to for it to be said that consent is not free there has to
be a bilateral mistake of fact.