Difference Between Consent And Free Consent

Consent plays a pivotal role in forming valid contracts. Defined under Section 13 of the Indian Contract Act of 1872, consent ensures that two parties agree to the same thing in the same sense, known as consensus-ad-idem. However, not all forms of consent are legally sufficient. This is where the concept of "free consent" becomes crucial.

Free consent, defined under Section 14 of the Act, ensures that consent is given voluntarily and is free from coercion, undue influence, fraud, misrepresentation, or mistake. Without free consent, a contract becomes voidable or void, depending on the circumstances, significantly impacting its enforceability.

In this blog, we delve into the intricate difference between consent and free consent, exploring their definitions, legal provisions, and the effects of their absence. By understanding these distinctions, you'll gain valuable insights into the foundational elements of contract law, ensuring clarity and compliance in your agreements

Meaning Of Consent

Consent, in general, means to agree. Section 13 of the Indian Contracts Act of 1872 defines it as when two persons agree on the same thing in the same sense. This is called consensus-ad-idem.

For example, Shyam offers to sell his car to Ram. Ram believes that Shyam is selling his white car, but Shyam is actually selling his black car. In this scenario, both parties consent to selling and buying a car but do not agree to the same vehicle, so it is not consent.

Free Consent

Free consent is obtained without force or fraud. It is given voluntarily, so free will is the only important element.

Section 14 of the Indian Contract Act of 1872 defines free consent as when any of the following does not obtain it:

1. Coercion
2. Undue influence
3. Mistake
4. Misrepresentation
5. Fraud.

Free consent is an extremely important element of a valid contract. Without it, the contract is voidable or null, depending on the facts.

Elements Of Free Consent

The following are essential elements of free consent:

1. It is free from coercion.
2. It is not given under the undue influence of any person.
3. The contract is not entered into due to fraud or misrepresentation.
4. The contract is not made by any party's mistake.

Cases When Free Consent Is Violated

Free consent is not valid in the following cases:

Coercion

Under Section 15 of the Indian Contract Act of 1872, coercion happens when a person commits or threatens to commit an act not allowed by the Indian Penal Code. It also includes cases where a person is forced to enter a contract or detained for this purpose.

For example, if B wants to buy A’s bike but A is not interested in selling it, B then threatens him that if he doesn't sell his bike to him, he will kill his son. This is coercion.

The effect of coercion in a contract is that it is voidable.

In the case of Chikkam Ammiraju vs. Chikkam Seshamma (1917), the husband threatened to commit suicide to coerce his wife to give him property. It was held to be voidable.

The term 'duress' is used in English contract law and is similar in concept to 'coercion' under Indian law. Duress generally involves actual or threatened violence or imprisonment. In Indian law, coercion covers both the committing and the threatening to commit acts forbidden by the IPC, as well as unlawful detention or threats of detention of property.

Also Read : Difference Between Coercion And Undue Influence

Undue Influence

Section 16 of the Indian Contract Act, 1872, defines undue influence. When a party is in a position to dominate the will of another and takes undue advantage of it, the contract is vitiated.

The relationships between teacher and student, parents and children, or doctor and patient.

For example, if Z wants to sell his car for Rs. 1 lakh, but X has a fiduciary relationship with him and convinces him to sell it for Rs. 50,000, it is a case of undue influence.

The contract is voidable at the option of the party whose consent was obtained by undue influence, not at the opinion of any party.

The aggrieved party also has a right to restore the benefits given to the other party under undue influence. It is covered under Section 19A.

Fraud

Section 17 of the Indian Contract Act of 1872 defines "fraud" as specific acts committed by a party to a contract with the intent to deceive or induce another party into the agreement. Its effect is that the agreement is voidable at the option of any party.

Fraud includes the following acts:

1. When some material information is concealed from a party
2. When a party suggests a fact that is not valid, or he believes it to be not true
3. A promise made with no intention of performing it
4. Acts made to deceive the other party
5. Act or omission as declared by law to be fraudulent.

Mere silence is not a fraud. Only when the parties must disclose all relevant information does their silence regarding an important fact lead to fraud. Insurance contracts, marriage arrangements, and share allotments are examples of situations in which parties must disclose all relevant information.

For example, Selling a horse while knowingly concealing a hidden lameness constitutes fraud under Section 17 of the Indian Contract Act, as it involves the active concealment of a material fact to deceive the buyer.

Misrepresentation

It is covered under Section 18 of the Indian Contract Act of 1872. It means a false representation of a fact. When a party provides wrong information that damages the other party, it misrepresents facts. Misrepresentation must be only a matter of material facts. Its effect is that parties can treat the contract as voidable.

Derry vs. Peek (1889) held that when a person honestly believes something to be accurate, it is a misrepresentation, not a fraud. Only intentional misrepresentation becomes fraud. There is a thin line between fraud and misrepresentation.

Mistake

Section 20 of the Indian Contract Act of 1872 provides that a contract is void if it is made due to a mistake of both parties. The mistake must concern a fact essential to the agreement.

For example, if B agrees to buy a dog from A, the dog dies when the contract is entered into. So, it means that the parties entered into the contract due to a mistake, which is void.

Section 21 further states that a mistake of law will not affect the validity of a contract. So, if the parties agree on the erroneous belief that the law does not apply to them, the contract is still valid.

Section 22 provides that a contract caused by a unilateral mistake (mistake of only one party) is not enough to affect the contract's validity. Both parties must be under a mistake of fact.

Difference Between Consent And Free Consent

Here’s the key difference between consent and free consent:

Conclusion

Understanding the difference between consent and free consent is essential for anyone involved in contractual agreements. While consent ensures that both parties agree to the same terms, free consent guarantees that this agreement is made voluntarily, without coercion, fraud, undue influence, or mistake.

The absence of consent renders a contract void, while the lack of free consent makes it voidable or void, depending on the circumstances. This distinction highlights the importance of free will and transparency in creating legally binding agreements.

By grasping these concepts, you can safeguard your legal interests, avoid potential disputes, and ensure compliance with the provisions of the Indian Contract Act of 1872. Whether you're entering into personal or professional contracts, a clear understanding of these principles is invaluable.

FAQs

A few FAQs on differences between Consent and Free Consent are:

Q1. Why is free consent important in a contract?

Free consent ensures that an agreement is entered into voluntarily and without external pressure, making the contract valid and enforceable. Its absence can render the contract voidable or void.

Q2. What are the elements of free consent?

The key elements of free consent include absence of coercion, undue influence, fraud, misrepresentation, and mutual mistake in the agreement.

Q3. What is coercion in the context of free consent?

Coercion, under Section 15 of the Indian Contract Act, 1872, involves using threats or force to compel someone to enter into a contract, making the agreement voidable.