What is Consent and Free Consent? Coercion, Undue Influence, Fraud, Misrepresentation, Mistake, Types of Remedies

What is Consent and Free Consent?

It is essential to the creation of every contract that there must be free and genuine consent of the parties to the agreement. The consent of the parties is said to be free when they are of the same mind on all the material terms of the conduct. The parties are said to be of the same mind when they agree on the subject and matter of the contract in the same sense and at the same time.

Consent is said to be free when it is not caused by:

  • Coercion
  • Undue influence
  • Fraud
  • Misrepresentation or
  • Mistake

Coercion Meaning in Law (Section 15)

Coercion means committing or threatening to commit any act that is forbidden by the Indian Penal Code 1860 or any other law in force. Coercion includes unlawful detaining or threatening to detain any property with the intention of entering into a contract with a person.

These contracts are voidable contracts. It means that they can be enforced by the person coerced if he thinks that he will be benefitted from this act. However, it is immaterial whether the Indian Penal Code 1860 is applicable at that time or not.

For example, when a husband asks his wife to write down the property in his name by threatening that he will commit suicide, it is a matter of coercion. In this case, it is the legal right of the wife to take back the property that she has given under coercion.

Undue Influence Meaning in Law (Section 16)

A contract is said to be induced by undue influence when a party is in a position to dominate the other party and takes the advantage of such a position in an unfair manner. A party is said to be of dominating nature when it holds some authority over the other party.

The essential ingredients of undue influence are as follows:

  • One of the parties is having real or fiduciary authority over the other party.
  • Such a party is in a position to dominate the other party.
  • The dominating party takes the advantage of the other party by unfair means.

Fraud Meaning in Law (Section 17)

Fraud includes the activities done by a party with the other party in the contract with its connivance or with the help of an agent with an intention to deceive.

The activities are as follows:

  • To promise something with the intention of not performing that

  • Any act fitted to deceive the other party

  • Any such act that the law declares as fraudulent

  • Concealment of the facts that are material to the contract

  • To provide some suggestions that are not true or that are given to cause some loss to the other party

Misrepresentation Meaning in Law (Section 18)

This does not involve any deception, rather it is obtained by providing wrong information to the other party. It means the assertion of something by a person that is not true, though the other party believes it to be true. A contract led by misrepresentation can be avoided by the person who is misled by the other party.

Mistake Meaning in Law (Section 20)

A mistake is different from all the above wrongful activities. A mistake in a contract arises due to a matter of fact and not because of a matter of the law. When the parties to the contract are under a mistake as to the matter of fact and not to the matter of the law, the contract is said to be void contract.

As we also know that all void contracts are not enforceable, the contract that is entered by mistake will not be enforceable by the law.

Types of Remedies in Case of Absence of Free Consent

For a contract that is entered under coercion, misrepresentation, or fraud, the aggrieved party has some remedies available. There will be no value in the contract that has no remedy. Generally, the most common and simple remedy against the absence of free consent is to claim compensation.

These types of remedies are discussed as follows:

Contractual Remedies

Contractual Remedies are the remedies that are written in the contract itself. These remedies are applicable in case any party is not able to complete its obligation. In case there is no free consent, contractual remedies are the best.

Statutory Remedies

Statutory Remedies are those remedies that are provided by the law. If any fraud or misrepresentation is done in the contract, the aggrieved party can sue the other party in court.

Equitable Remedies

Equitable Remedies are those remedies that are available under the Special Relief Act, of 1963. It is a remedy available through a civil court. It aims at the exact fulfillment of legal obligations through a civil court.

The equitable mortgage available under the Special Relief Act includes:

  • Recovery of the possession of the property
  • Specific performance of a contract
  • Rectification of a contract
  • Rescission of a contract
  • Cancellation of a contract
  • Injunction

  • Clarkson, K., Miller, R., Jentz, G., & Cross, F. (2014). Business Law: Text and Cases (11th ed.).

  • Keenan, D., & Riches, S. (2007). Business law. Harlow: Pearson Longman.

  • Encyclopedia Britannica, (2014). business law. Retrieved 28 February 2023, from http://www.britannica.com/EBchecked/topic/86266/ business-law

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