Free Consent

Topics: Contract, Contract law, Mistake of law Pages: 6 (1452 words) Published: December 21, 2010
“CONSENT” DEFINED

According to Section 13, “two or more persons are said to be consented when they agree upon the same thing in the same sense.” (Consensus-ad-idem)

“FREE CONSENT” DEFINED

Under Section 14, Consent is said to be free when it is not caused by

1. coercion, as defined in section 15, or
2. undue influence, as defined in section 16, or
3. fraud, as defined in section 17, or
4. misrepresentation, as defined in section 18, or
5. mistake, subject to the provisions of sections 20, 21 and 22. ELEMENTS VITIATING FREE CONSENT
1. COERCION (SECTION 15)

“Coercion” is the committing, or threatening to commit, any act forbidden by the Pakistan Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. Illustration

* A threatens to shoot B, if B does not agree to sell his property to A at a stated price. B's consent in this case has been obtained by coercion.

* A, on board an English ship on the high seas, causes B, to enter into an agreement by an act amounting to criminal intimidation under the Pakistan Penal Code. A afterwards sues B for breach of contract at Karachi. A has employed coercion.

2. UNDUE INFLUENCE (SECTION 16)
According to Section 16 - A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of other and uses the position to obtain unfair advantage over the other.

Illustration

A's son has forged B's name to a promissory note. B, under threat of prosecuting A's son, obtains a bond from A for the amount of the forged note. If B sues on this bond, the Court may set the bond aside.

Effects of Undue Influence

a. When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused.

b. Any such contract may be set aside either absolutely or partly who was entitled to avoid it has received any benefit there under upon such terms or conditions as the court may deem fit.

Burden of Proof

Section 16(3) has clearly mentioned that the burden of proof that such contract was not induced by undue influence shall lie upon a person who is in a position to dominate the will of other.

Illustration

B son of A has sued his father for a contract which was induced by undue influence. It is the responsibility of A father of B to prove that the contract was not made under undue influence. 3. FRAUD (SECTION 17)

“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract: a. the suggestion, as to a fact, of that which is not true , by one who does not believe it to be true; b. the active concealment of a fact by one having knowledge or belief of the fact; c. a promise made without any intention of performing it; d. any other act fitted to deceive;

e. any such act or omission as the law specially declares to be fraudulent

Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such regard being had to them, it is the duty of the person keeping silence is, in itself, equivalent to speech.

Illustrations

False Statement of Fact - Sec. 17 (1)
A fraudulently informs B that A's estate is free from encumbrance. B thereupon buys the estate. The estate is subject to a mortgage. B may either avoid the contract, or may insist on its being carried out and the mortgage debt redeemed. Active Concealment - Sec. 17 (2)

B, having discovered a vein of ore on the estate of A, adopts means to conceal, and does conceal, the existence of the ore from A....
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