consent

Section 13-consent
Section 14-free consent
Consent is said to be free when it is not caused by
Mistake
Coercion
Undue influence
Fraud
Misrepresentation
mistake
 Difference between coercion and duress
.

1)Coercion is a process by which consent is obtained by threatening to commit an act

punishable under the Indian Penal Code 1860. It means making a person to give his consent by
force or threat. Section 15 of the Indian Contract Act 1872 defines coercion as "the committing
or threatening to commit any act Forbidden by Indian penal code 1872, or the unlawful
detaining or threatening to detain, any property to the prejudice of any person with the
intention of causing any person to enter into an agreement

Duress, under Common Law, consists in actual violence or threat of violence to a person. It
includes doing an illegal act against a person, whether it is to be crime or tort. Duress is not
confined to unlawful acts Forbidden by any specific penal law, like the Indian penal code in
India
2) in India detaining or threatening to detain any property

In England, duress is constituted by acts or threats against any person of a man and not
against his property.

3)India, Coercion may proceed from a person who is not a party to the contract, and it
may also be directed against a person who again, maybe a stranger to the contract

in England, duress should proceed from a party to the contract and is also directed against
the party to the contract himself, or his wife, parent, child or other near relatives
 coercion
15. ‘Coercion’ defined.—‘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. —‘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.“
Explanation.—It is immaterial whether the Indian Penal Code (45 of 1860) is or is
not in force in the place where the coercion is employed

Chikkam Ammiraju v Chikkam Seshamma 1918

The threat of suicide amounted to coercion because suicide is an act forbidden
by IPC so the contract was voidable. There is a punishment for attempt to
commit suicide but no punishment for suicide. The person who commits
suicide goes unpunished, not because the act is not forbidden, but because
there is nobody left to be punished.
Oldfield J dissented on the ground that unless an act is made punishable it
cannot be said to be forbidden
RANGANAYAKAMMA VS. ALWAR SETTI, 1890.
297. Trespassing on burial places, etc.—
Whoever, with the intention of wounding the feelings of any person, or of insulting the
religion of any person, or with the knowledge that the feelings of any person are likely to be
wounded, or that the religion of any person is likely to be insulted thereby,commits any
trespass in any place of worship or on any place of sepulchre, or any place set apart from the
performance of funeral rites or as a depository for the remains of the dead, or offers any
indignity to any human corpse, or causes disturbance to any persons assembled for the
performance of funeral ceremonies,shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with both.

To threaten a criminal prosecution is not perse an act forbidden by

IPC. Such an act could only be one forbidden by if it amounted to a
threat to file a false charges
Askari Mirza v Bibi Jai Kishori ; 1912

Masjidi v Ayuisha 1880

Unlawfully detaining or threatening to detain any property

Astley v Reylands 1731
Essar Steel Ltd v Union of India 2006
Undue Influence
16.(1) 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.
2)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-
• Real and apparent
authority
• Fiduciary relationship
• Mental or bodily
distress
• Ability to dominate the will of other
• Consent under pressure
• Subtle species of fraud
Mannu Singh v Umadut Pande 1888-90
Relations which involve domination. Trust and
confidence between the parties not on equal
footing.
Real and apparent authority able to dominate
the will of the other
Tax officer and assesse police and accused
Fiduciary relationships are of several kinds
Trust and confidence. Solicitor and client, doctor n
patient, trustee and trust, spiritual adviser and
devotee, women and her confidential agent, parent
or guardian and child, creditor and debtor
Moody v Cox 1917
Mannu Singh v Umadut Pande 1888-90
Wajid khan v Raja Ewaz Ali khan 1890-91
• There must be a relationship between the contracting parties
• Inequality in bargaining power
• One is in the position to dominate the will of another
• Whether the contract has been induced by undue influence
• Which is that of onus probandi
The onus is on the done or grantee to show conclusively that the
transaction is honest, bonafide, well understood, the subject of
independent advice and free from undue influence

Mental Distress
Ranee Annapurni Nachiar v Swaminatha chettiar 1909-11
Raghunath Prasad Sahu v Surju Prasad Sahu 1924

Statutory compulsion no distress

Andhra sugars ltd v State of AP, 1968
Relations which involve
domination
Williams v Bayley 1866
Mental Distress
Ranee Annapurni Nachiar v Swaminatha
chettiar 1909-11

Urgent need of money no distress

Position of dominance necessary for
presumption to arise
Raghunath Prasad Sahu v Surju Prasad
Sahu 1924
Statutory compulsion, no distress
Andhra Sugars Ltd v State of AP 1968
U.P. Coop cane unions Fedarations v West U.P.
sugar mills Assn. 2004
Presumption of undue influence
Lancashire Loans v black 1934
Chand singh v Ram Kaur 1987
The presumption is raised in the following
cases
1)Unconscionable gifts or bargains
Wajid khan v Raja Ewaz Ali khan 1890-91

In money lending
may be applicable to sale transactions
Bhimba v Yashwant Rao 1900
Lakshmi Amma v Talengalanarayana 1970
Inche Noriah Binte v Sk Allie 1929
 benefits without consideration
Thungabhai Bhratar Purushottam shamji
kumbhojkav v Yashwant dinakar jog 1945
Relationship of blood, marriage or adoption
not sine qua non
Subhash Chandra Das Mushib v Ganga
prasad Das mushib 1967
Ladli Prasad Jaiswal v Karnal Distillery co ltd
1963
Inequality in bargaining power
Lloyds bank v Bundy 1975
Influence distinguished from persuation
Exploitation of needy
Schroeder Music Publishing Co v
Macaulay 1974
National Westminister Bank P&C v
Morgan 1985
Technique of judicial intervention in unfair
bargains
Resquing employees and others from
unreasonable terms
2)Contracts with Pardanashin woman
Kalibhaksh Singh v Ram Gopal Singh 1913-14
Moonshe Buzloor Raheem v Shumsoonisa
Begum 1867
Srimati Bibhabati Devi v/s Kumar Ramendra
Narayan Roy and others (1936– 42) bhawal
case
Misrepresentation
18. “Misrepresentation” defined
“Misrepresentation” means and includes—"(1)
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;
(2) any breach of duty which, without an intent
to deceive, gains an advantage of the person
committing it, or any one claiming under him, by
misleading another to his prejudice, or to the
prejudice of any one claiming under him;
(3) 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.
•(1) The representation must be made
innocently and unintentionally.
•(2) The representation is false but it is thought
to be true.
•(3) Misrepresentation must relate to the
material facts essential to the contract.
•(4) The purpose of the misrepresentation is to
induce the other party to enter into a contract.
•(5) The party, making the misrepresentation
has no intention to deceive the other party.
Unwarranted statements
Misrepresentation is a positive assertion of a person which is actually
not true but the person giving it thinks it to be true without
reasonable justification. This statement must be related to the fact
which becomes a subject matter of the contract

Oceanic Steam Navigation co v Soonderdas Dharamsey 1890

the defendants in Bombay rented a ship from the plaintiffs that they were completely
unfamiliar with, which was characterized in the charter document and conveyed to them as
having a tonnage register of no more than 2,800 tonnes. The registered tonnage turned out
to be 3,045 tonnes. The defendants refused to accept the ship as a fulfillment of the
charter party, and it was determined that they had the right to do so due to the erroneous
tonnage statement
Breach of duty Any breach of duty without the intention to deceive the other
party and it brings an advantage to the person committing it by misleading the
other to his prejudice. In fact, the statement was true when it was given but later
on, before it is acted upon, it becomes false to the knowledge of the person making
it. Now it is the duty of the person who makes it, to disclose the change in
circumstances to the other party. Otherwise, it will be treated as misrepresentation
Once a duty has been established in relation to the defendant we must find that the
defendant has breached the duty. A breach of the duty of care occurs when one fails to
achieve his or her duty of care to act wisely in some aspect. Commonly, if a party does not
act in a reasonable manner to prevent foreseeable injuries to others, the duty of care is
breached. Breach of duty is defined in a very interesting case named Vaughn V. Menlove
which it states that the defendant is found to have overdue of the claimant and if he acts
below the reasonable standard then a breach of duty would have been committed
they may find out the cause of the breach and try to remedy it;
they may dispute that a breach has occurred;
they may argue that there is an exclusion clause or other terms in the contract limiting their
liability for the breach; or
they might argue that there is a cause for their breach, or that the contract is invalid
Oriental bank corporation v John Fleming, 1879 bom
Because the plaintiff did not have time to study the contents of a deed, he signed it under the
belief that it only included formal topics already decided between them. The deed, on the other
hand, included a release in the defendants’ favour. As a result, the plaintiff was granted
permission to set aside the deed. According to the Court, the defendant had no legal or moral
responsibility to reveal the terms of the deed.
Khandu charan polley v Chanchala Bhuniya, AIR 2003 cal 213
With change of circumstances
With v O’Flanagan 1936
Esso Petroleum co ltd v Mardon 1976
Eyre v Measday, 1986
Thake v Maurice, 1986
Mere expression of opinion and forecast is not misrepresentation
Bisset v Wilkinson, 1927
Inducing mistake about subject matter
Mistake about subject matter: When a contracting party innocently makes a mistake about
the subject matter of a contract and induces the other party to enter into a contract. It means
misrepresentations has been applied.
Illustration: While selling his car, A states that his car has 1600 cc engine but actually it is
1300 cc but it was not in his knowledge B enters into a contract with A for the purchases of a
car. It is misrepresentations involved in the contract
Dambarudhar Behera v State of orissa 1980
Certain forest coupes were auctioned off by the government. The renters inhabited a portion
of the property. The Forest Service was aware of this but did not inform the buyer. The
contract was deemed void due to misrepresentation. the plaintiff rescinded the contract due
to misrepresentation of facts by the other party. The plaintiff claimed damages as the
expenditure occurred in the formulation of the contract and the loss of earnings till the time
the plaintiff got to know about the misrepresentation. The Court awarded damages to him
and held that the damages given for fraudulent misrepresentation should not surpass the
losses which would have occurred had the facts not been misrepresented.
Farrand v lazarus 2002
Suppression of vital facts and material facts
R v Kylsant 1932
Haji Ahmad Yarkhan v Abdul Ghani Khan 1937
Asha Qureshi V Afaq Qureshi 2002
Bindu Sharma v Ram prakash Sharma 1997

Damages awarded for misrepresentation are punitive and

compensatory
The legal term punitive damages refers to a monetary award ordered by
the court to be paid by a defendant to the plaintiff in a civil lawsuit.
While it is common for a plaintiff to be awarded money to pay for a
wrong committed by the defendant, such as money to pay medical bills,
or for property damage, punitive damages are awarded only for the
purpose of punishing the defendant for his conduct. A punitive damages
award is paid to the plaintiff by the defendant. To explore this concept,
consider the following punitive damages definition
Actual damages are intended to provide the monetary amount necessary to replace what was lost and nothing more. Usually,
compensatory damages are awarded in civil court cases in order to compensate for damages, injury, or another incurred loss.
Examples of Actual Compensatory Damages
•Medical and hospital bills
•Medical treatments
•Rehabilitation expenses
•Physical therapy
•Ambulance expenses
•Medicine and Prescription drugs
Actualcare
•Nursing home damages are intended to provide the monetary amount necessary to replace
•Domesticwhat was lost and nothing more. Usually, compensatory damages are awarded in civil
services
•Medical equipment
court cases in order to compensate for damages, injury, or another incurred loss. As
•Lost wages or lost
we'll employment
explore income
further in the article, they are different from punitive and treble
•Increased living expenses
damages.
•Property replacement or repair
•Transportation

General compensatory damages, meanwhile, include estimates of loss not involving actual monetary expenditure. Some courts use
the "multiplier method," which calculates general damages by multiplying the sum total of one's actual damages by a number that
signifies the seriousness of the injury.
In other jurisdictions, courts will use the "per diem" method, which attaches a dollar value to each day a plaintiff suffers and adds the
value of all those days together. In some cases, a court will use a hybrid of these two methods to calculate general compensatory
damages. These general compensatory damages include:
Mental anguish
Disfigurement
Future medical expenses
Future lost wages
Long-term physical pain and suffering
Loss of consortium
Inconvenience
Loss of enjoyment of life
Loss of opportunity
Section 17 of the Act defines fraud as –
“Fraud” means and includes any of the following acts committed by a
party to a contract, or with his connivance, or by his agents, with intent to
deceive another party thereto his agent, or to induce him to enter into the
contract.
Section 17 (1) – the suggestion as to a fact of that which is not by one who
does not believe it to be true – is known as SUGGESTIO FALSI or suggestion
of falsehood.
Section 17 (2) – the active concealment of a fact by one having the
knowledge or belief of the fact – is known as SUPPRESIO VERI or
suppression of a fact.
Section 17 (3) – a promise made without any intention of performing it. It
means a promise made falsely with the intention of inducing the other party
to make a reciprocal promise and thereby enter into a contract.
Section 17 (4) – any other Act fitted or designed to deceive.
Section 17 (5) – any such act or omission as the law specially declares to be
fraudulent
Assertion of facts without belief in truth
Derry v peek 1889
Knowingly
Without belief in its truth
Recklessly careless whether it be true or
false
Active concealment
Ningavva v Byrappa Shiddappa
Hireknrabar 1968
Mere silence is no fraud
Shri Krishnan v Kurukshetra University 1976
Keats v Earl of Cadogan 1851
When silence is fraud
•Duty to speak
•Where silence is deceptive
•Change of circumstances
•Half truths
Material facts must be disclosed In case of marriage
Anurag Anand v. Sunita Anand (1996), it was held that caste, income, age,
nationality, religion, educational qualifications, marital status, family status,
financial status, would be considered as material facts and circumstances.
Duty to speak
Contracts of Uberimae Fidei
• Contracts of Insurance
• Fiduciary Relationship
Regier v Campbell Stuort
• Contract of Marriage contracts of Family settlement
• Share allotment contracts
• Partnership contracts

P .Sarojam v LIC, 1986

George P. Varghese v G.Daniel 1998
Promise made without intention of performing
DDA v Skipper Construction co (p)ltd 2000
Loss of right of rescission
•By affirmation
Long v Lloyd 1958
•By lapse of time
•Intervention of rights third parties
•Car &Universal finance Co ltd v Caldwell
•1965
66 Mode of communicating or revoking
Rescission of voidable contract
section64 consequences of rescission of
voidable contract