FREE CONSENT

After any agreement of the two parties, the making of a valid contract is a very important factor and free consent of the parties to enter into a contract is very important. Free consent is defined under section 14 that consent is only free if it has not been caused by coercion, fraud, undue influence, misrepresentation or by mistake. When the consent of a person is caused by committing or threatening to commit any act that has been forbidden by the Indian penal code or by unlawful detaining or threatening to detain any property of the prejudice of any person it is called coercion. Another factor is undue influence. When the relations, subsisting between the parties are such that one of the parties is in a position to determine the will of the other, and uses that position to obtain an unfair advantage over the other, then there is said to be an undue influence under section 16. A person is generally dominant in situations like where he holds a real or apparent authority over the other or where he stands in a fiduciary relationship with the other or where he makes a contract with a person whose mental capacity is ill because of illness, age or because of mental or physical distress.

Authority here refers to the authority that an employer may have over his employee. It is an undue influence if he uses his position for obtaining his consent. A fiduciary relationship is generally a relation which is built on trust. If a person gains trust just for the fulfilment of his own needs, then it is also an undue influence. Also if a contract is made while a person is in an unconscious state, and other person takes advantage of that position, then also it is undue influence. The most common factor which is to be kept in mind while obtaining free consent is keeping in mind the factor of fraud. When the consent of the party to a contract has been obtained by fraud, then the contract is voidable. Some essentials of the contract are that if there is a false statement of fact which is untrue by a person whom himself doesn’t believe in. Also, the statement should be made with the wrongful intention of deceiving another party. Another important factor for free consent to be kept in mind is a misrepresentation. When a person makes a false statement which he believes to be true and he doesn’t intend to deceive the party, then it is called misrepresentation. There is a difference between fraud and misrepresentation. In fraud, the person who makes a statement himself is aware of the fact that what all he is saying is not true, whereas, in misrepresentation, a person doesn’t wish to deceive the other party. It is merely a misunderstanding. In fraud, the party whose consent had been so obtained can avoid the contract whereas, in case of misrepresentation, the other party cannot dissolve the contract if he could have discovered the truth with ordinary diligence.