Free Consent: Definition and Meaning

Free consent is defined by the Latin word consensus-ad-idem, which means that both parties to the contract must agree. The goal of a contract being a two-way deal is defeated without the consent of both parties. The legitimacy of an agreement is protected by a contract formed through voluntary assent, giving the parties a safety net. It enables the parties to preserve their autonomy to set their guiding philosophy or policy. The Indian Contract Act defines consent as "when two or more persons agree upon the same item and in the same sense" under Section 13. Hence, something that both parties can agree on is required.

Let us take an example. A agrees to let B buy his car. A wants to sell his car because he has three other vehicles. B believes he is getting a new Honda. A and B have not agreed on the same item in this instance in the same sense. When there is no consent, there is also no contract.

What is the Meaning of Free Consent?

Now, Section 14 of the Indian Contract Act provides a definition of free consent. According to the clause, consent is deemed freely given provided it is neither influenced nor caused by any of the following −

• Coercion

• Undue Influence

• Fraud

• Misrepresentation

• Mistake

Coercion (Section 15)

According to Section 15 of the Indian Contract Act of 1872, coercion is defined as the unlawful holding of property against the will of any person with the intent to compel that person to enter into an agreement, as well as the committing or threatening to commit any act that is prohibited by the Indian Penal Code (45 of 1860).

Coercion is the act of compelling someone to sign a document. When threats or intimidation are used to coerce a party into giving consent, i.e., when it is not voluntary consent. In order to increase the credibility of a threat, coercion may really involve causing physical and mental suffering. The threatened person may then cooperate or obey under threat of further injury.

Effect and Burden of Proof in the Case of Coercion

The result is that the contract becomes voidable due to coercion. It suggests that the contract may be voidable at the whim of the person whose agreement was not given freely. So, it is up to the aggrieved party to decide whether to uphold the agreement or dissolve it. The side defending the coercion has the burden of proof. He is under further pressure to provide evidence.

Undue Influence (Section 16)

In accordance with Section 16 of the Indian Contract Act of 1872, an influence will be regarded as undue influence if it results from −

• One party to the contract is in a position of trust and wrongfully controls the other party.

• Such a person uses his dominant position to obtain an unfair advantage over others.

Undue influence has two main components −

• The relationship, which includes trust, confidence, and authority (fiduciary relationship),

• Unfair persuasion—careful review of the contract's provisions

What is regarded as a fiduciary relationship?

A trust-based partnership is referred to as a fiduciary relationship. A person expects not to be betrayed when they place their trust and faith in another. if the other person violates the faith and confidence placed in him and wields improper influence.

Fiduciary relationships include the following examples −

Effect and Burden of Proof in the Case of Undue Influence

An agreement is voidable at the discretion of the person whose consent was obtained by undue influence. Any such agreement may be annulled. According to the law, a plaintiff must establish two elements in order to show that he was under undue influence −

• The defendant must not only hold a dominant position but

• He has to apply it.

It claims that merely demonstrating the prospect of undue influence on the part of the dominant party is insufficient for the plaintiff to succeed. There must be proof that someone influenced the plaintiff by using their power.

Fraud (Section 17)

The Indian Contract Act's Section 17 defines fraud as any of the following actions taken by a contracting party, its accomplice, or its agent with the intent to deceive or convince the other party or its agent to enter the contract: "Any act or omission that the law deems to be fraudulent, such as the effective concealment of a fact by someone who knows about it, a promise made without any intention of keeping it, any other act fit to deceive, etc."

Fraud is not committed merely by remaining silent about information that could influence someone's decision to sign a contract, unless the situation calls for the silent party to speak or unless silence constitutes speech in and of itself.

Effect and Burden of Proof in the Case of Fraud

The following rules apply as the effects −

• The fraudulent agreement results in a null contract;

• The deceived party has the right to withdraw from the agreement; and

• The party is responsible for collecting damages as a result of the fraudulent agreement.

In most cases, fraud cannot be established with actual, tangible evidence. It is concealed in its movement. It makes sense that fraud must have been committed if the evidence provided points to wrongdoing. Circumstantial proof is typically the only method for dealing with fraud-related issues. The goals of justice would regularly, if not always, be defeated if this were not allowed. The only person to be held accountable for complicity in fraud is a wilful perpetrator. Subject to the legislation of the party who was defrauded, any actual damages caused by fraud may be recovered as a remedy for restitution, even if they were not reasonably foreseeable.

Misrepresentation (Section 18)

According to Section 18 of the Indian Contract −

• Misrepresentation is the release of deceptive details leading to the assumption that the other party will enter into an agreement and subsequently lose.

• Yet, the guilty party's information was given genuinely believing it to be true. It is claimed that misrepresentation has been made.

Kinds of Misrepresentation

There are two types of misrepresentation −

• Negligent Misrepresentation

• Innocent misrepresentation

Effect and burden of proof in the case of misrepresentation

If the party who has suffered because of the deception when entering into a contract has the option to do so, the contract may be rescinded under the Particular Relief Act of 1963 within a reasonable amount of time. By demonstrating that "he had reasonable grounds to think that the evidence portrayed was valid throughout the time the contract was executed," the defendant must prove that the misrepresentation was not committed fraudulently in order to avoid bearing the burden of proof. The burden of proof is disproportionately on the party making the false statement.

Mistake (Section 20)

There are two forms of mistake under Indian Contract Law −

• The mistake of "Fact,"

• The mistake of law

Mistaken of Fact

A mistake of fact occurs when one or both of the contracting parties misunderstand a term that is crucial to understanding the contract; such a mistake may be made due to confusion, negligence, omission, etc.; a mistake is never done intentionally; it is a simple oversight. Such errors can be either unilaterally or bilaterally committed.

Mistake of Law

The mistake could be caused by an error in Indian law or a mistake in foreign legislation. The general rule is that ignorance of the law is not an adequate defence if the error relates to Indian laws. This implies that neither party can assert that the other is ignorant of the law.

According to the Contract Act, no party may seek redress on the grounds that they were not aware of Indian law. An improper reading of any legal provisions will also fall under this category. But disregard for international law is not treated similarly. Foreign law provides some wiggle room because the parties are not required to understand it. Hence, a mistake under foreign law is actually treated as a factual error under the Indian Contract Act.

Conclusion

An agreement must have free consent in order to be legally binding. Free consent is crucial, and this cannot be emphasised enough. The party must freely and gladly consent. It is essential that you agree to the contract voluntarily and without being under any duress. The parties' freedom of assent is crucial, since it could jeopardise the contract's legality. The aggrieved party has the right to void the agreement if the consent was gained or caused by coercion, undue influence, fraud, misrepresentation, or error.

Frequently Asked Questions

Q1. What is an example of free consent?

Ans. As both parties are consenting with regard to the identical blue bike that they have in mind and without the use of any forces like coercion, undue influence, etc., A selling his bike to B is a perfect illustration of free consent.

Q2. Why is free consent important?

Ans. When two parties take and comprehend the goal, subject matter, and terms and circumstances of the agreement in the same way, that is free consent. The word free consent refers to a meeting of two parties or more.

Q3. Which is not free consent?

Ans. If consent was obtained through coercion, undue persuasion, fraud, misrepresentation, or error, it cannot be claimed to have been given freely.