Consensus is a subjective agreement by two parties to make a contract. Improperly consensus is when a contract has been obtained in a manner in which in the eyes of the law is improper. This contract is regarded as voidable meaning that one of the parties who is innocent has a choice whether or not to have the contract declared void. If the innocent party chooses to uphold the contract it is entirely valid and may be enforced like any other contract. However if the party chooses to set the contract aside the contract is valid. The distinction between improperly obtained consensus and absence of consensus is that with improperly obtained consensus an agreement to make a contract would have been reached in an improper way although there is consensus. The agreement is a valid one provided that the other elements necessary to constitute a contract are present. However since the contract has been obtained by improper means it is voidable at the instance of the innocent party. On the other hand absence of consensus means that there is lack of subjective consensus or parties to a contract are in disagreement. Mistake is an element that shows that indeed there was a dissensus. It is a situation where a contracting party acts while under an incorrect impression regarding some other fact that relates to and affects the contract between the parties. Firstly l shall deal with contracts obtained by improper means and these contracts are considered to be voidable. Voidable contracts are contracts which on the face of it meet all the essential requirements of a valid contract but the agreement of one of the parties to the contract would have been induced by an impropriety attributable to one of the parties to the agreement. There are specific categories of improperly obtained consensus which are misrepresentation,duress and undue influence. Misrepresentation is a pre-contractual statement or conduct which creates a false impression in the mind of a contractual party and which influences her decision to contract. It can also be defined as a form of misstatement whereas misstatement is an assertation that does not accord with true facts. Misrepresentation can be classified into three categories which are fraudulent/intentional misrepresentation whereby a person making the misrepresentation know that the statement was untrue, negligent misrepresentation is whereby the person making the misrepresentation did not know the statement was untrue and lastly innocent misrepresentation is whereby the person did not know that it was untrue. For a contract under misrepresentation to be rendered voidable there are certain requirements that have to be met which are i)
There must be a misrepresentation that is an untrue statement concerning an existing fact or condition ii)
The misrepresentation must be made by one contracting party to another contracting party iii)
The misrepresentation must be unlawful
The misrepresentation must have induced the contract as it stands v)
The misrepresentation can be made intentionally, negligently or innocently A case which can describe circumstances of misrepresentation is that of Donners Motors (Pvt) Ltd v Kufinya. Where it was held that Kufinya could cancel the contract despite his signature, because it was indeed induced by a misrepresentation. In the course of the sale of a motor car by Donners Motors to Kufinya, defects were discovered which the seller promised to rectify. Kufinya had signed a draft of hire purchase contract without reading unaware that it contained a voetstoest clause stating that he accepted the car with its defects. Donners Motors then refused to make repairs and Kufinya sued on grounds that the agreement had been induced by a misrepresentation. Duress refers to all forms of threats calculated to coerce, compel or intimidate a party into entering into a contract desired by the one who threatens her. A party who gives his or her consent to a contract under duress does so not through...
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