Posted February 1, 2014 by advocateguru in Learning Centre
 
 

Free Consent

One of the essential elements of a valid contract is that there should be free consent of the concerned parties to the contract. ‘Two or more persons are said to consent when they agree upon the same thing in the same sense.’ [Sec 13].

Free consent [See 14]

Consent is said to be free when it is not caused by—

A. coercion, or

B. undue influence, or

C. fraud, or

D. misrepresentation, or

E. mistake, subject to provisions of sec 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.

If the consent of one of the parties to the contract is not free consent due to the above factors the contract is not a valid contract. When the consent is tainted by coercion, undue influence, fraud or misrepresentation is contract is void at the option of the aggrieved party. However, if the consent is tainted by mistake the contract is void.

So in order to enter into a valid contract there must not only be consent but it must also be free. Consent means they must agree upon the same thing in the same sense. Both the parties have same thing in their mind about the subject matter of contract. The following illustration makes the point more clear.

Example:- X has two horses one black and other one white. He intended to sell black one and expressed his intention of selling one of them to Y without indicating the horse which he intend to sell. Y through the proposal to be for White one conveyed his acceptance of the offer. In the instance there is no meeting of mind. X intended to sell black but thought it to be white one. Both have not understood the same thing in the same sense. So there is no consent at all. Only when existence of consent is established, only then the question of whether the consent is free or not arises.

 


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