MAQSOOD AHMED
Career Academy HFD
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Q-What is free consent? Discuss the elements and position of contract when consent is not free.
Ans.
According to sec. 10
“All agreements are contracts if they are made by the free consent of the parties”
Consent defined
Sec. 13 explains free consent as
” Two or more parties are said to consent when they agree upon the same thing in the same sense”
Free consent
According to sec. 14
Consent is said to be free when it is not caused by:
- Coercion sec. 15
- Undue influence sec16
- Fraud sec.17
- Misrepresentation sec.18
- Mistake sec. 20, 21, 22.
Example: A threatens to shoot M, if he does not give his house on rent. M agrees. The consent of M is not free.
Elements of affecting consent
Coercion sec.15 defines as:
Coercion is the committing or threatening to commit, any act forbidden by the Pakistan Penal Code or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement”
Example: Consent obtained at the point of pistol, by threatening to hurt someone
Explanation to this section:
It is immaterial whether the Pakistan Penal Code is or is not in force in the place where the coercion is employed.
Effect of coercion:
Section 19 points out that a contract induced by coercion is voidable at the option of the party whose consent was obtained through coercion.
Undue influence sec.16 (1) defines as
A contract is said to be induced by undue influence where the relation subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain unfair advantage over the other”
Dominating position sec.16(2)
A person is deemed to be in a position to dominate the will of another..
a- When he holds a real or apparent over the other or he stands in a fiduciary relation to the other,
b-When he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
Example: A , a spiritual adviser induced his follower M , to gift him his house secure Jannat. It was held that gift was obtained by undue influence as A was in a position to dominate.
Effect of undue influence
Where consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the part whose consent was so obtained. Any such contract may be set aside absolutely or if the party who is entitled to avoid it has received any benefit, upon such terms and conditions as the court may consider just and equitable.
Fraud (Sec.17)
Section 17 says “Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent
, with an intention to deceive another party thereto or his agent or to induce him to enter into the contract….
- the suggestion, as a fact of that which is not true, by one who does not believe it to be true;
- the active concealment of a fact by one having knowledge or belief of the fact;
- a promise made without any intention of performing it;
- any other act fitted to deceive:
- any such act or omission as the law specially declares to be fraudulent.
Example: A sells a house to B. The house has cracked walls. A fills it up to conceal the defect. B can not find the defect. A is guilty of fraud.
Consequences of fraud
The following remedies are available to the aggrieved party:
- He can avoid the contract.
- He can sue for damages.
- He can ask for specific performance and restoration.
4. Misrepresentation ( sec.18)
According to section 18, Misrepresentation means and includes….
- the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
- any breach of duty which, without an intent to deceive, gains advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him,
- causing ,however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreemen
Effect of Misrepresentation
- Aggrieved party can avoid the contract.
- Party can accept the contract but ask the other party for restoration.
5. Mistake
It is necessary for the creation of a valid contract that both the parties to the contract should agree to the same thing in the same sense and consent is freely given. Where the parties give their consent under any error, there is no agreement at all. Mistake is of two kinds:
(1) Mistake of fact
(2) Mistake of law.
Example A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Pakistan Laws of Limitation, the contract is not voidable.
Effect of mistake
Section 20 says “Where both the parties to an agreement, are under a mistake as to matter of fact essential to the agreement, the agreement is void.
Section 21 says “A contract is not voidable because it was caused by a mistake as to any law in force in Pakistan but a mistake as to law not in force in Pakistan has the same effect as a mistake of fact.
Section 22 says “A contract is not voidable merely because it was caused by one of the parties to the contract being under a mistake as to a matter of fact. Ended
973 words
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