Monday, 8 August 2011

What is the difference between Consent and Free Consent and also discuss the position of agreements made without free consent

Without the consent of the parties contract cannot take place. Where the parties have different things in mind or understand the same thing in different ways is not real consent. It defines in the following words :

"When two or more person agree upon the same thing in the same sense, they are said to be consent."

In above definition two words are more important, same thing and same sense. In some cases the consent may have been given under the mistake which prevents the formation of real agreement. Mistakes may relate to :

i. The subject matter of the agreement.

ii. The nature of transaction.

iii. The identity.

Free consent is the consent which has been obtained by the free will of the parties. No pressure in the form of coercion fraud undue influence, mistake and misrepresentation in obtaining the consent. Contract section defines free consent in the following words :

"Consent is said to be free when it is not caused by (a) coercion, (b) undue influence, (c) fraud, (d) misrepresentation (e) mistakes."

Effects on Agreement :-
When both the parties consent is caused by mistake, contract is not enforceable by law at the option of any of the contracting party. Because it is a void contract. In any contract if the consent is not free it is a voidable contract at the option of the party whose consent was caused.

Example :- If one person enters into an agreement by fraud. Later he comes to know about the real story, then he may reject it or he may confirm it. If he confirms it then it becomes a such contract whose consent was not free. Free consent of both parties is necessary for the validity of the contract. The contract will be void or voidable when the consent of any contracting party is not free.

Void Contract Example :- Mr. Ram agrees to buy a cow from Mr. Raju. It turned out that the cow was dead at the time of contract. Now it is void contract.

Voidable Contract Example :- Mr. Tariq causes Miss. Pinky to enter into an agreement by threatening to kill her son. If Miss. Pinky signs the agreement, the contract is voidable at the option of Miss. Pinky. No doubt Miss. Pinky has given consent to the agreement but it is not a free consent. It is a voidable agreement and it can be cancelled at the option of Miss. Pinky.


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