Consent and Free Consent - Discharge of Contract, Business Law | Business Law - B Com PDF Download

Introduction:
Sec 10 of contract act states "All agreements are contracts, if they are made by the free consent of parties".In order to make a valid contract it is necessary that there should be (a) Consent and (b) Free Consent. For the formation of a contract the parties should either have assented, or be deemed to have assented, to the same thing in the same sense. it is called consensus ad idem

Relevant Provisions: 

Sec 13 and 14 of the contract dene "consent" and "free consent" respectively. Meaning of consent:

(a) Webster's College Dictionary: Consent means “to agree or to be willing to do something."

(b) Black's Law Dictionary: Consent is "a concurrence (cooperation, union in action, agreement in opinion) of wills. It is "voluntary yielding (to give up) the will to the proposition of another.

(c) Sec 13 of Contract Act: "Two or more persons are said to be consented when they agree upon the same thing in the same manner".

Essentials of Consent: 

1. Parties must be agreeing on the same thing. 
"Same thing" the whole subject-matter of the agreement whether it consist wholly or in part of an act (ex. delivery of some material object) or promise to do or abstain from doing something. If the parties have different things in mind or the parties though agree upon a thing but do so in different sense, it is not said to be a real consent and agreement.

2. Parties must agree in the same sense. 
If one of the parties to an apparent contract, by his own fault enters into it in a sense different from that in which it was understood by the other party he may be precluded from setting up that there was no agreement in the same sense.

3. Parties expressions must be in agreement: 
The purpose of the great majority of contracts is to effect an exchange of promises, or of certain performances. To attain this purpose, there must be mutual expressions of assent to the exchange. Meaning of Free Consent: A mere consent is different from a free consent. For a valid contract, the consent, as as explained above, must not only merit being consent but also being a free one, as dened below:

(a) Case law Denition:
Consent is free when the activity of man, by which it is affected, works without obstacles to impede its exercise; such obstacles are named in this section.

(b) Black's law Dictionary
Free consent means "voluntary agreement by a person in the possession and exercise of sucient mental capacity to make an intelligent choice to do  something proposed by another".

(c) Contract Act 1872:
Consent is said to be free when it is not caused by coercion, undue inuence, Fraud, Misrepresentation or Mistake.

Essentials of free consent: 
The essentials of a free consent according to Sec 14 are, that consent must not be caused by Coercion (Denition Sec 15) Undue inuence (Sec 16) Fraud (Sec 17) Misrepresentation (Sec 18) or Mistake (subject to provisions of Sections 20, 21 and 22). 

(1) Coercion: 
It is Restraint, compulsion or act of compelling by physical or mental force or arms to repress. In widest sense it implies that fear is the motive which coerces the will. Every transaction in this sense is regarded as voidable. In this sense Coercion would cover every case where a party to an agreement is deprived of the freedom of his will. It is dened in sec 15 of contract act.

(2) Undue inuence: 
Undue inuence is a mental or moral threat. There is undue inuence when the inuence exerted overpowers the will without convincing the judgment. It is a grip on another's mind. It may be dened as “the unconscious use by one person of power possessed by him over another in order to induce the other to enter into a contract".

(3) Fraud: 
Fraud so clouds the reason that the person defrauded cannot form a rational judgment of the effect of the transaction upon his interest. Consent cannot be said to be free when it has been obtained by fraud.

(4) Misrepresentation:
It means misstatement of a fact material to a contract. A mere expression of opinion cannot be called Misrepresentation. If Misrepresentation is made wrongly and intentionally, it is said to be fraud.

(5) Mistake:
Parties of the contract should agree the same thing in the same sense. If parties give their consent under any error, there is no agreement. In other words where the parties have different things in mind or understand the same thing in different ways is not free consent.

Affect on contract:
A contract is voidable if there is no free will. Not only consent but free consent is necessary to complete the validity of contract.

Final Analysis: 
Free consent is the consent which is obtained by the free will of the parties. Free consent is the historic essentials of a valid contract. A contract is voidable if there is no free will. Not only consent but free consent is necessary to complete the validity of contract.

Difference between consent and free consent