Consensus Ad Idem

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EROSION OF CONSENSUS AD IDEM

This work is to discuss about the erosion of “consensus ad idem” or called as “meeting of the minds”, to get to know about this we have to know about “Contract” where in which the “consensus ad idem” plays a very important role.

Meaning and Definition of Contract:

The word contract is derived from the Latin “contractum”, meaning “drawn together”. It, therefore, denotes a drawing together of two or more minds to form a common intention giving rise to an agreement which is intended to be enforceable by law and which may have elements in writing, though contracts can be made orally. Section 2(h) of the Indian Contract Act, 1872 defines a contract as an agreement enforceable by law. Section 2(e) defines agreement as “every promise and every set of promises forming consideration for each other.” Section 2(b) defines promise in these words: “When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted.

Essentials of Contract:

Every contract is said to have the following elements:-

❖ Offer

❖ Acceptance

❖ Consideration

❖ Meeting of the minds [consensus ad idem]

❖ Competency of parties &

❖ Legality or Lawful Object

These six elements are said to be the essentials of a valid contract, absence of even one of these would result in non-enforceability or a contract which is not legally enforceable. Two or more persons can enter into a contract and there should be offer or proposal from any of the party to the other and the offer can be of any form i.e., express, implied or general offer, also the offer should be certain and definite. An offer is synonymous with proposal. The offeror or proposer expresses his willingness “to do” or “not to do” (i.e., abstain from doing) something with a view to obtain acceptance of the other party to such act or abstinence. Thus, there may be “positive” or “negative” acts which the proposer is willing to do. When an agreement is placed and which is said to be legally enforceable, consideration on both sides is a must. Each party to the agreement must give or promise something and receive something or a promise in return. Consideration is the price for which the promise of the other is sought. However, this price need not be in terms of money. In case the promise is not supported by consideration, the promise will be nudum pactum (a bare promise) and is not enforceable at law. Moreover, the consideration must be real and lawful.

❖ Meeting of Minds [consensus ad idem]:

“Consensus ad idem [Latin: agreement on the same thing / Meeting of the minds]. The agreement by contracting parties to identical terms that is necessary for the formation for the formation of a legally binding contract. In particular it refers to the situation where there is a common understanding in the formation of the contract. This condition or element is often considered a necessary requirement to the formation of contract.

It is understood that a contract cannot be formed or may not be considered as legally enforceable when there is no common understanding between the parties to the contact. They may not be expressly implied in a contract but the conduct of the parties and their understanding towards performing an act is enough to show that there is consent between both the parties.

❖ Competency of parties:
The parties to a contract should be competent to enter into a contract. According to Section 11, every person is competent to contract if he (i) is of the age of majority, (ii) is of sound mind, and (iii) is not disqualified from contracting by any law to which he is subject. Thus, there may be a flaw in capacity of parties to the contract. The flaw in capacity may be due to minority, lunacy, idiocy, drunkenness or status. If a party to a contract suffers from any of...
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