Law of Contract: Genuine Consent
Lecture 8
Law of Contract: Genuine Consent
INTRODUCTION
Although the contract may have the essentials of a valid offer, acceptance, legal intentions and consideration, its validity or enforceability may be affected by a number of factors. The agreement may be wanting in genuine consent between the parties. That is, although the parties may appear to have reached an agreement, it may not have been genuinely achieved because of misconduct, pressure, unfairness, or fear by those involved.
As separate issues to genuine consent, the law allows minors and others lacking legal capacity to be relieved of contractual obligations in certain circumstances; additionally, the validity of the contract is affected if the subject matter of the contract is illegal at law, or the contract is not in the required form under a particular statute.
For the purposes of this course, we focus on the topic of ‘absence of genuine consent’ and specifically the issues of misrepresentation (both innocent and fraudulent), undue influence, duress and unconscionable conduct. In such circumstances, the parties have not entered into the contract voluntarily or with real agreement, although on the face of it, the rules for offer and acceptance may appear satisfied. Here, the law allows the innocent party to ‘avoid’ the contract, involving the return of the parties to the pre-contractual position. Such a remedy is known as rescission. Please note that the issue of ‘mistake’, which is also falls under the category of ‘genuine consent’ or ‘lack of true agreement’, is not part of this course.
On successful completion of this lecture, you should (within the scope of the course) be able to:
explain the significance of ‘an absence of genuine consent’ in relation to a simple contract define misrepresentation and describe the key elements of misrepresentation distinguish between fraudulent and innocent misrepresentation, and identify the respective remedies for each
define
Law of Contract: Genuine Consent
INTRODUCTION
Although the contract may have the essentials of a valid offer, acceptance, legal intentions and consideration, its validity or enforceability may be affected by a number of factors. The agreement may be wanting in genuine consent between the parties. That is, although the parties may appear to have reached an agreement, it may not have been genuinely achieved because of misconduct, pressure, unfairness, or fear by those involved.
As separate issues to genuine consent, the law allows minors and others lacking legal capacity to be relieved of contractual obligations in certain circumstances; additionally, the validity of the contract is affected if the subject matter of the contract is illegal at law, or the contract is not in the required form under a particular statute.
For the purposes of this course, we focus on the topic of ‘absence of genuine consent’ and specifically the issues of misrepresentation (both innocent and fraudulent), undue influence, duress and unconscionable conduct. In such circumstances, the parties have not entered into the contract voluntarily or with real agreement, although on the face of it, the rules for offer and acceptance may appear satisfied. Here, the law allows the innocent party to ‘avoid’ the contract, involving the return of the parties to the pre-contractual position. Such a remedy is known as rescission. Please note that the issue of ‘mistake’, which is also falls under the category of ‘genuine consent’ or ‘lack of true agreement’, is not part of this course.
On successful completion of this lecture, you should (within the scope of the course) be able to:
explain the significance of ‘an absence of genuine consent’ in relation to a simple contract define misrepresentation and describe the key elements of misrepresentation distinguish between fraudulent and innocent misrepresentation, and identify the respective remedies for each
define