What is Free Consent? All you need to learn about

This article aims to explore the concept of free consent, its significance, elements and its implications under the Indian Contract Act, 1872

 

1. Introduction

 

Contracts are the backbone of modern commerce, enabling transactions, agreements, and relationships that drive economic growth. However, for a contract to be legally binding, certain elements must be present, one of which is “free consent”. Free consent plays a crucial role in ensuring the fairness and integrity of contracts. In India, the concept of free consent is governed by the Indian Contract Act, 1872.

 

2. Meaning of consent

 

According to Section 13 of the Indian Contract Act, 1872, “Two or more persons are said to consent when they agreed upon the same thing in the same sense”.

 

3. Understanding Free Consent

 

Free consent, as defined in Section 13 of the Indian Contract Act, is an essential element of a valid contract. It states that two or more parties must enter into an agreement with a clear and mutual understanding of the terms and without any coercion, undue influence, fraud, misrepresentation, or mistake. In simpler terms, both parties should willingly agree to the terms of the contract without any external pressures or deceit.

 

4. Elements of free consent

 

Consent is considered to be free consent when the following factors are satisfied:

 

1. It should be free from coercion.
2. The contract should not be done under the pressure of undue influence.
3. The contract should be done without fraud.
4. The contract should not be made through misrepresentation.
5. The contract should not be made by mistake.

 

4.1. Coercion

 

Coercion is defined in Section 15 of the Indian Contract Act 1972 as any act involving a threat, unlawful detention or a threat of detention of the other party’s property with a view to obtaining his consent and an act prohibited by the Indian Penal Code.

 

4.2. Undue Influence

 

Section 16 of the ICA,1872 notes that when the party is in a position to control the will of another party and render an unfair advantage over the other party, the consent obtained from the undue power.

 

4.3. Fraud

 

Section 17 describes fraud as an effort by the other party, after the party has entered into the contract, to hide the actual truth or to provide such information that is not true or to make such promises without any intention of fulfilling it, and an act prohibited by law and another alternative to deceive the party.

 

4.4. Misrepresentation

 

Section18 states that it leads to misrepresentation when the party enters into the contract and another party performs some intention to cheat infringes the obligation or induced the error without having intention.

 

4.5. Mistake

 

Mistake may work in two ways:

 

1. Mistake in the mind of the parties in such that there is no genuine agreement at all. There may no consensus ad idem, i.e., the meeting of the two minds, i.e., i.e., there may be absence of “Consent” as defined in Section 13. The offer and acceptance do not coincide and thus no genuine agreement is constituted between the parties.
2. There may be genuine agreement, but there may be mistake as to a matter of fact relating to that agreement.  

 

5. Significance of Free Consent

 

The principle of free consent is integral to maintaining fairness and equity in contractual relationships. It safeguards parties from being taken advantage of and ensures that contracts are entered into voluntarily. Without free consent, contracts would lack the essential element of mutual agreement, leading to chaos in the commercial world. By upholding the importance of free consent, the Indian Contract Act maintains the legitimacy and ethical integrity of business transactions.

 

6. Validity of Contract Without Free Consent

 

Free consent is an essential element for a contract to be valid. Without free consent, a contract becomes voidable at the option of one party. This means if the consent obtained by any of the parties for a contract is not free and is caused by either coercion, undue influence, fraud or misrepresentation, then the party has a right to make the contract voidable at their wish.

 

7. Conclusion

Free consent is the cornerstone of contract law under the Indian Contract Act. It ensures that contracts are entered into voluntarily and with a clear understanding of the terms by all parties involved. This principle upholds the fairness and integrity of business relationships, promoting a healthy and equitable commercial environment. By recognizing the significance of free consent, the Indian legal framework provides a solid foundation for upholding the sanctity of contracts in the diverse landscape of commerce.