What is Free Consent?

Section 13 of the Contract Act defines the term ‘consent’ and lays down that “Two or more persons are said to consent when they agree upon the same thing in the same sense. “Thus, consent involves identity of minds or consensus ad-idem i.e., agreeing upon the same thing in the same sense. If, for whatever reason, there is no consensus ad item among the contracting parties, there is no real consent and hence no valid contract.

Now we come to free consent

‘Free Consent’ defined. Section 14 lays down that “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. Misrepresentation as defined in Section 18, or
4. Fraud, as defined in Section 17, or
5. Mistake, subject to the provisions of Section, 20, 21 and 22.
 

Henceforth the various factors which vitiate consent are

· Coercion,

· Undue influence

· Misrepresentation

· Fraud

· Mistake

“Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, misrepresentation, fraud or mistake” (Sec. 14). This means that in order to bring a case within this Section, the party, who alleges that his consent has been caused by any of the above elements which vitiate consent, must show that, but for the vitiating circumstance the agreement would not have been entered into. To put it differently, in order to prove that his consent is ‘not free’, the complainant must prove that if he had known the truth, or had not been forced to agree, must prove that if he had known the truth, or had not been forced to agree, he would not have entered into the contract.

In the absence of ‘free consent’, the contract may turn out to be either voidable or void depending upon the nature of the flaw in consent to an agreement is caused by coercion, undue influence, misrepresentation or fraud, there is ‘no free consent’ and the contract is voidable at the option of the party whose consent was so caused (Sec. 19 and 19A).

But when consent is caused by ‘bilateral mistake’ as to a matter of fact essential to the agreement, the agreement is void (Sec. 20). In such a case there is ‘no consent’ at all.

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