THE INDIAN CONTRACTACT, 1872- 3.2 FREE CONSENT (Section 13 & 14)

 3.2 FREE CONSENT  

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3.3 ELEMENTS VITIATING FREE CONSENT

Definition of Consent according to Section 13:

“two or more persons are said to consent when they agree upon the same thing in the same sense.”

Parties are said to have consented when they not only agreed upon the same thing but also agreed upon that thing in the same sense. ‘The same thing’ must be understood as the whole content of the agreement. Consequently, when parties to a contract make some fundamental error as to the nature of the transaction, or as to the person dealt with or as to the subject matter of the agreement, it cannot be said that they have agreed upon the same thing in the same sense. And if they do not agree in the same sense, there cannot be consent. A contract cannot arise in the absence of consent.

If two persons enter into an apparent contract concerning a particular person or ship, and it turns out that each of them, misled by the similarity of name, had a different person or ship in his mind, no contract would exist between them as they were not ad idem, i.e., of the same mind. Again, ambiguity in the terms of an agreement, or an error as to the nature of any transaction or as to the subject matter of any agreement may prevent the formation of any contract on the ground of absence of consent. In the case of fundamental error, there is really no consent whereas, in the case of mistake, there is no real consent.

As has been said already, one of the essential elements of a contract is consent and there cannot be a contract without consent. Consent may be free or not free. Only free consent is necessary for the validity of a contract.

Definition of ‘Free Consent’ (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.

When consent to an agreement is caused by coercion, fraud, misrepresentation, or undue influence, the

agreement is a contract voidable at the option of the party whose consent was so caused. When the consent is vitiated by mistake, the contract becomes void.