FREE CONSENT

8th Element of Valid Contract

By: Mohd Syahril Ibrahim

UiTM Seremban
Edited by: Anie Farahida Omar
 ESSENTIAL ELEMENTS
OF A CONTRACT

4. Intention to
1. Proposal/Offer Create Legal
The main Relations
elements
of a
2. Acceptance valid contract are: 5. Certainty
6. Formalities

7. Legal
3. Consideration 8. Free Consent
Capacity

3
Learning Outcomes:
At the end of the lecture, the students
should be able to:

1) Identify the situations where the

consent is not given freely

2) Explain the effect of contracts when the

consents are not given freely.
 Free Consent
 Sec 10 (1) = all agreements are contracts if they are
made by the free consent of parties ……

 Sec 13 = two or more persons are said to consent

when they agree upon the same thing in the same
sense

 Sec 14 = consent is said to be free when it is not

caused by :
(a) Coercion
(b) Undue influence
(c) Fraud
(d) Misrepresentation
(e) Mistake
 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.
 Note : so caused = not freely given
 Sec 15 : COERCION
Paksaan

Sec 14 : consent is said to be free when it is not caused by a) coercion

 TYPE / DEFINITION / EFFECT CASE REMEDIES
SECTION ELEMENTS

COERCION i. committing or threatening to Sec. 19 (1) : Kesarmal v Valliappa Sec. 73 : a

SEC 15 commit any act forbidden by Voidable at the Chettiar person to whom
the Penal Code, OR option of the money has been
party whose Held: Transfer of land in paid or anything
ii. the unlawful detaining or consent is so the presence of delivered ……
threatening to detain any caused/ not Japanese officer during under coercion
property, and freely given. occupation of Malaya must repay or
was voidable, since return it.
iii. with the intention of there is not free consent.
causing any person to enter
into an agreement. Welch v. Cheeseman

Elements of coercion must be

fulfilled either : (i) and (iii) OR
(ii) and (iii)
Sec 14 : consent is said to be free when it is not caused by b) undue influence

Sec 16 (b) :
UNDUE INFLUENCE
Pengaruh yang tidak wajar
 TYPE / DEFINITION / ELEMENTS EFFECT CASE REMEDIES
SECTION

UNDUE i. The domination of the will Sec. 20 : Allcard v. Skinner Sec 20 : Any
INFLUENCE by one party over the other. such contract
SEC 16 ii. The dominant party must Voidable at may be set aside
obtain an unfair advantage. the option of either absolutely
- Must fulfill both elements. the party or,
- The influence must be whose Datuk Jaginder Singh
excessive (undue). consent is so v. Tara Rajaratnam if the party who
caused/ not Held: There is an undue was entitled to
Sec. 16 (3)(a) : Once a freely given. influence when Jaginder avoid it has
transaction is established as used his influence as a received any
being unreasonable, the lawyer to obtain lands benefit
burden falls on the dominant from Tara (his client) for thereunder, it
party to prove that no himself. may be set aside
domination was practiced to upon such terms
bring about that transaction. and conditions as
the court may
deem just.

- the party may

choose to
rescind the
contract.
 Undue Influence
Sec 14: consent is said to be free when it is not caused by b) undue influence

 A plaintiff may rescind a transaction on the

grounds of undue influence if he was
pressured to enter into it by the influence
the defendant was able to exercise over him.

 S16 (1) - Undue influence occurs 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.
 Sec. 17 : FRAUD

Sec 14 : consent is said to be free when it is not caused by c) fraud

 TYPE/ DEFINITION / ELEMENTS EFFECT CASE REMEDIES
SECTION

FRAUD i) There must be a false Sec. 19 : Weber v. Brown Party may

SEC 17 representation/ statement Voidable at the choose to
made with the intention to option of the Pf sued Def for rescind the
deceive. party whose damages in respect contract.
ii) The victim must have consent is so of fraudulent
relied on the false caused/ not freely misrepresentation.
representation in making given. Def lied about the
decision to make contract. number of rubber
- Both elements must be Exception: fraud trees on the estate.
fulfilled per se is not Pf believed and
- The victim must prove voidable if purchased the
there is a fraud. discover the truth estate.
- Issue of silence: not with ordinary Held: Def had
amount to fraud (illustration diligence. deceived the Pf.
(a) Sec 17), except: - Means the
1. Positive duty to disclose victim must do Letchumy v.
facts-eg: insurance contract. something Annamalay
2. Fiduciary relationship- eg: positive to
solicitor & client. discover the truth
before he can
claim fraud.
 Sec 17
 Fraud is defined in S17 to include certain acts
committed by a party to a contract with intent to
deceive the other contracting party or to induce him
to enter into a contract.

 The difference between fraud and

misrepresentation is that -
 - in fraud, the maker of the statement does not
believe in the truth of the statement made.

 - whereas in misrepresentation the maker
believes that the statement is true.
 Sec 18 :
MISREPRESENTATION
Salahnyata

Sec 14 : consent is said to be free when it is not caused by d) misrepresentation

 TYPE/ DEFINITION / ELEMENTS EFFECT CASE REMEDIES
SECTION

MISREPRES Definition: A false statement Voidable at the Bisset v. Wilkison Sec. 34 (1) (a) of
ENTATION of fact made by one party to option of the the Specific
SEC 18 another party, which has the misled party Wilkison agreed to Relief Act 1950
effect of inducing that party buy a land when
Read full into the contract. Sec. 19 (1) Bisset estimated the The misled party
note on Elements: land could carry may choose to
misrepresent 1. There must be a false 2000 sheep, but it rescind the
ation. representation. turned to be less. contract by
2. The representation must be giving notice to
one of fact. Held: It did not the other party of
3. The statement was constitute his intention to
addressed to the party which misrepresentation as rescind the
acted upon it. it’s merely Bisset’s contract OR
4. The representation must statement of opinion. - apply to court to
induce the contract. have the contract
5. Duty of misled party to Keates v. Lord rescinded.
exercise ordinary diligence. Cordogan
 Sec 21/ 22 : MISTAKE
Silap / Khilaf

Sec 14 : consent is said to be free when it is not caused by e) mistake

TYPE/ SECTION DEFINITION / ELEMENTS EFFECT CASE

MISTAKE Definition: Mistake can be simply

defined as wrongful belief about
SEC. 21 : certain matter while making a
MUTUAL contract. A party thinks differently
MISTAKE from the real fact about certain
- parties matter.
understand each 1. Mistake as to the existence of the 1. VOID/ Sec 21 1. Strickland v. Turner
other and are at subject matter of the contract
cross purposes.

SEC. 23: 2. Mistake as to the identity of the 2. VOID/ Sec 21 2. e.g purchase of
UNILATERAL subject matter Aeroback and Saga
MISTAKE
- only one of the
parties is under 3. Mistake as to the quality of the 3. VALID/ Sec 23 3. e.g. A purchase unsound
mistake subject matter & Explanation of horse. B knows the horse
Tamplin v. James Sec 21 is unsound

4. Mistake as to the possibility of 4.VOID/ Sec 21 4. Sheikh Bros Ltd. v

performing the contract. Ocshner
Please drop your question in the comment area.
THANK YOU!

Prepared by: Dr. Anie Farahida Omar