Introduction:
For making a legally valid contract, free consent is a significant element. Section 13 of the Indian Contract Act,1872, deals with consent, and Section 14 defines free consent. According to that, “When two or more persons agree upon the same object in the same thing, there are some reasons under this, the consent would be considered as a free consent.” There are some reasons such as coercion, undue influence, fraud, mistake and misrepresentation, etc. If the consent covered any of these aspects, the said consent should be voidable. The consent should not be taken by mistake; if that does, it would be resulted the consent become void. In this article, we explore what is the definition, meaning of consent, and different types of elements of free consent.
What is the meaning and concept of free consent?
The Indian Contract Act, 1872, section 13 has defined that, “When two parties enter into the contract, there should be a meeting of minds between the two parties.” It means the contracting parties should agree upon the same thing in the same sense. We can say that when one person offers to express his desire, and another person freely accepts or agrees to that, it is called consent.
According to the Indian Contract Act,1872, free consent is a type of consent that is not given under coercion, undue influence, fraud, error, or misrepresentation. According to the provision of section 13 of the ICA, when two or more persons agree upon the same subject in the same manner, it will be called consent. Such consent is given freely by an individual, and it is considered a free consent. The consent is not considered free if it is given under the following circumstances:
Fraud
Misrepresentation
Undue Influence
Mistake
Definition of free consent:
As per the provision of section 13 of the Indian Contract Act, 1872, consent means, when both parties agree and are willing to give their consent in the same thing and in the same sense, it is known as consent.
Let’s understand with an example, Mr A want to sell his car to Mr B. Mr A has two cars, red and green. Mr A want to sell his red car, but Mr B want to buy a green car. Here, both parties are not agreeing upon the same thing in the same sense. Thus, we can say that there would be no free consent between them.
Essential Elements of Free Consent:
As we refer to the provisions of sections 13 and 14 of the Indian Contract Act, 1872. Section 13 defines the consent, while Section 14 explains what constitutes free consent. The consent to be counted as a free if it does not meet the following:
Coercion: Means, force to enter into the contract, such as threatening an individual to enter into the contract. Thus, the contract obtained by force or threat is covered under coercion.
Undue Influence: Means, when a contracting party use their power or position for the unjustified from over to another party. Such as, one contract’s party gain unfair advantage of their power from another party of their power from another party as per their choice.
Fraud: Means, male practice or mala fide intention, of something false, hiding facts by someone to obtain a contract. Such as, by making a commitment by hiding awareness of a fact by action, behaviour, or intention, etc., that deems to be a fraudulent manner in the law.
Misrepresentation: Means providing false information by someone who believes it to be true.
Mistake: Means, the error or misunderstanding of a fact or law related to the content of the contract.
Effect of Absence of Consent in a Contract
Consent is a crucial part of a contract. In the absence of real consent, the contract might be declared as voidable or void, depending on circumstances. In terms of voidability, the injured party has a choice to void the contract. While in terms of a void contract, the said contract is void from the beginning, and there is no legal validity of the contract from the start.
Difference Between Consent and Free Consent
There are the following differences between consent and free consent:
- The concept of consent is defined under section 13 of the Indian Contract Act,1872, while the concept of free consent is defined under section 14 of the Indian Contract Act, 1872.
- According to section 13, consent is a mutual agreement between two parties, where they agree upon the same thing in the same sense. According to section 14, free consent is not covered by coercion, fraud, undue influence, misrepresentation or mistake.
- Consent is a basic and crucial part of the contract; in the absence of consent, the said contract is void. While in the absence of free consent in the contract, the said contract might be declared as voidable.
Legislative Remedies in the Lack of Consent
The Indian Contract Act,1872, provides certain legislative remedies in the case of a lack of consent in the contract. It may raise potential issues such as:
Rescission of Contract:
The agreement can be challenged by the aggrieved party in the court of law, or it can be terminated by the suffering party for the restoration of its original condition.
Damages:
The aggrieved party can put their claim for the relief of compensation for the losses. If the agreement is made by fraud or misrepresentation.
Reformation:
The court has the power to order the alteration of the contract terms if they think fit that the intention of the parties is true and genuine.
Conclusion:
Free consent is a fundamental requirement for making a legally binding contract. If the consent is not free, the aggrieved party may contest such a contract. They have a choice: either accept the contract or void it. If the consent is wholly in the contract, such a contract is void at the beginning, and there is no legal validity of that contract in the eyes of the law.
