The Doctrine of Consent Under the Indian Contract Act

INTRODUCTION: Unless two or more persons agree on the same thing in the same sense  with respect to a contract especially sale and purchase the parties are said to enter into a contract with consent. If the contract is vitiated by Coercion, Undue influence, fraud, misrepresentation and mistake as to a matter of fact essential to the contract etc the contract is said to be breached by the erring party  who is guilty of the breach leading to legal remedies unless there is a contract to the contrary.

“Consent” defined

Two or more person are said to consent wen they agree upon th

e same thing in thesame sense.

  1. “Free consent” defined –

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

(1) coercion, as define

d in section 15, or

(2) undue influence, as defined in section 16, or

(3) fraud, as defined in section 17, or

(4) misrepresentation, as

defined in section 18, or

(5) mistake, subject to the provisions of section 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.

  1. “Coercion” defined

“Coercion” is the committing, or threating to commit, any act forbidden by the Indian

Penal Code (45 of 1860) or the unlawful de

taining, or threatening to detain, any

property, to the prejudice of any person wh

atever, with the inte

ntion of causing any

person to enter into an agreement.

  1. “Undue influence” defined

(1) A contract is said to be induced by

“under influence” where the relations

subsisting between the parties

are such that one of the pa

rties 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 generally of

the foregoing principle, a

person is deemed to be in a position to dominate the will of another –

(a) where he hold a real or apparent author

ity over the other, or where he stands in

a fiduciary relation to the other; or

(b) where he makes a contract with a pers

on whose mental capacity is temporarily

or permanently affected by re

ason of age, illness, or

mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a

contract with him, and the tr

ansaction appears, on the face of it or on the evidence

adduced, to be unconscionable, the burden

of proving that such contract was not

induced by undue influence shall be upon th

e person in a position to dominate the

will of the other.

Nothing in the sub-section shall affect th

e provisions of section 111 of the Indian

Evidence Act, 1872 (1 of 1872)

  1. “fraud defined

“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 indu

ce him to enter into the contract;

(1) the suggestion as a fact, of that which

is not true, by one who does not believe it

to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any

intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

  1. “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 whichis not true, though he believes it to be true;

(2) any breach of duty which, without an

intent to deceive, gains an advantage to

the person committing it, or anyone 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 subjec

t of the agreement.

  1. Voidability of agreements without free consent

When consent to an agreement is caused

by coercion, fraud or

misrepresentation,

the agreement is a contract voidable at th

e option of the party whose consent was so

caused. A party to contract, whose consent

was caused by fraud or mispresentation,

may, if he thinks fit, insist that the contra

ct shall be performed,

and that he shall be

put on the position in which he would have been if the representations made had

been true.

Exception : If such consent was caused by mi

srepreentation or by

silence, fraudulent

within the meaning of section 17, the contract, neverthless, is not voidable, if the

party whose consent was so caused had th

e means of discovering the truth with

ordinary diligence.

Explanation : A fraud or misrepresentation which did not cause the consent to a

contract of the party on whom such fr

aud was practised, or to whom such

misrepresentation was made, does

not render a contract voidable.

19-A. Power to set aside contract induced by undue influence –

When consent

to an agreement is caused by undue influe

nce, the agreement is a contract voidable

at the option of the party

whose consent was so caused.

Any such contract may be set aside either absolutely or, if the party who was entitled

to avoid it has received any benefit there

under, upon such terms and conditions as

to the Court may seem just.

  1. Agreement void where both parties

are under mistake as to matter of

fact

Explanation : An erroneous opinion as to the value of the things which forms the

subject-matter of the agreem

ent,is not be deemed a mistake as to a matter of fact.

  1. Effect of mistake as to law

A contract is not voidable because it was ca

used by a mistake as to any law in force

in India; but mistake as to a law not in force in India has the same effect as a

mistake of fact.

Conclusion: the draftsmen in their wisdom had  almost exhaustively provided the above five breaches  and the the related remedies therefrom such as Coercion, Undue influence, fraud, Misrepresentation and mistake Among the  first 4 breaches Coercion, undue influence, frauds, Misrepresentation. Are voidable at the option of the wronged party to approach court or other forum for relief against the guilty party  for  Rescission, damages, injunction etc Mistake which may b e of the following forms

1) Mistake as to the identity of the parties

2) Mistake Identity and Nature of the subject of the matter of the contract

3) Nature and content of the promise itself.

The above three kinds of mistakes are void, means have absolutely no legal sanctity and parties would be put in same place prior to entering into void contract. If any consideration has been poassed on quantum meruit basis the benefited party/parties must return that benefit  before rescinding the contract.

I once again reiterate that unless there is consensus ad idem, as all the parties or two parties to a contract agree on the same thing in the same sense the contract is vitiated by free consent. Without the protection provided under Section 14,125,16,17,21  in the form of coercion, undue influence, fraud, misrepresentation and Mistake wronged contracting parties would’ve been rudderless and remediless.

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