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Free Consent |
d. Free Consent
In order to constitute a contractual agreement, it is essential that the consent to such agreement is obtained freely. Section 14 of the Indian Contract Act defines free consent wherein it has been stated:
Consent is said to be free when it is not caused by -
- coercion
ii)
- undue influence
iii)
- fraud
iv)
- misrepresentation
v)
- 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.
i) Coercion
Section 15 of the Indian Contract Act states "Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, 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.
Thus, the essential features of an act of coercion are:
- Committing or a threat to commit an act forbidden by the Indian Penal Code.
- Unlawfully detaining or a threat to detain any property.
- An act which is to the prejudice of any person.
It can be mentioned here that it is immaterial whether the India Penal Code was or was not in force in the place where the act of coercion was said to have been committed. Coercion may be in the form of showing fear or any physical compulsion or threat to goods. However, the intention of the person involved in the act of coercion, must be to compel any person to enter into a contractual agreement.
Even a threat to commit suicide is considered as an act amounting to coercion.
Section72 of the Contract Act states that a person who has received money or any goods being delivered to him, by mistake or under coercion, is under obligation to pay back such sum of money or return such goods.
Coercion in English Law is termed as 'Duress' or 'Menace'.
ii) Undue Influence
Section 16 of the Indian Contract Act states as follows:-
- 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.
- In particular and without prejudice to the foregoing principle, a person is said to be able to dominate the will of another-
- where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
- where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
- Where a person who is in a position to dominate the will of another enters
- into a contract with him, and the transaction appears, on the face of it or on evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
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