What is Free Consent?

Abstract

Free Consent, in simple terms, means giving consent to a person for the performance of an act at one’s own will. But in the context of Indian law both the terms free consent and consent have their importance and wide meaning.

In this article, I would throw light on the legal meaning of free consent and the comparison between Consent and Free Consent.

Consent:

Section 13 of the Indian Contract Act,1872 (ICA) defines the term “Consent” as – “Two or more persons are said to consent when they agree upon the same thing in the same sense”.

It means that the parties to the contract must agree upon the same terms or contents of their agreement. They must agree to the same terms in the same sense and they must have the same understanding of those terms. If there is no consensus ad idem, meeting of minds, on the material terms of the contract, then such contact will be void.

Indian Contract Act,1872 mainly deals with the provisions related to contracting and is a parent law from which many other civil laws over time has evolved like Family Law, Transfer of Property Act, etc. the main provisions of which Indian Contract Law deals are different kinds of contract, conditions of a valid contract and all other provisions related to the Contract. Indian contract also defines free consent and what constitutes free consent and what are factors affect the contract.

Free Consent:

“Only those agreements which are made by the free consent of the parties are contracts.” Hence not just consent but free consent is necessary for the validity of the contract.

Section 14 in furtherance of Section 13, defines free consent as consent that is not a result of any of the following-

1. Coercion (Section 15)
2. Undue Influence (Section 16)
3. Fraud (Section 17)
4. Misrepresentation (Section 18)
5. Mistake (Section 20,21 and 22)

If the free Consent of either of the parties is obtained from any of the following mentioned above then the contract entered between the two is voidable at the option of the aggrieved party.

1.Coercion (Section 15):

Section 15 of ICA defines “coercion” as under:

“Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatsoever, to cause any person to agree”.

Illustration-

X threatens Y at gunpoint to sell his car at Rs 50,000. The consent is not free and is obtained at the gunpoint.

Essentials of Coercion:

1. Committing or threatening to commit any act which is forbidden by the Indian Penal Code.
2. It may proceed from any person.
3. It may be directed against any person.
4. It is immaterial whether the Indian Penal Code was in force or not at the place where coercion is employed.

            Effect:

Coercion has the effect of making the contract voidable. It implies that at the discretion of the party whose consent was not free, the contract is voidable. The aggravated party will, therefore, determine whether to enforce the contract or to cancel the contract.

2.    Undue Influence (Section 16):

Section 16 defines under ICA as “A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in position A) to dominate the will of the other and B) uses that position to obtain an unfair advantage over the other”.

Example:

X has given a loan of Rs 1,00,000 to Y and states that Y should pay the double amount to X or otherwise sell his house to X for free. X used undue influence to take advantage of his money given as a loan.

Essentials of Undue Influence:

1. The one party to the contract must be in a position to dominate the will of the other party to the contract;
2. The party who is in dominant position must use that dominant position to obtain unfair advantages over the other party;
3. The unfair advantages i.e, any benefit, gained by unfair and undesirable methods or means, must come into existence from the use of that dominant position of the party to the contract.

Effect:

The effect of undue influence makes an agreement voidable at the option of the party whose consent was caused. Any such contract can be set aside. Only a party to the contract can avoid or rescind the contract. This right does not lie in the hands of the third party.

3.  Fraud (Section 17):

“Fraud” generally means, the deliberate making of a false statement regarding a subject matter of a contract with an intention to deceive the other party.

Section 17 defines fraud as when the party entered into the contract, the other party tried to conceal the actual fact or provided such information which is not true, or made such promises without any intention of fulfilling it and an act which according to the law is prohibited and another alternative to cheating the party.

For example,

A sold his refrigerator to B representing that the Refrigerator is new and in working condition. Later on, B was found to be old and not in proper condition. Such a statement made by A to B amounts to Fraud.

Essentials of Fraud:

1. There must be an intention to deceive
2. The act of fraud must be done by a party to a contract
3. There must be active concealment of a fact
4. False promise must be made
5. The other party to the contract must have acted upon the false statement.

Effect:

• The contract arising from fraud is a null contract.
• The misled party has the right to withdraw from the contract.
• Due to the fraudulent agreement, the party is responsible for recovering the damages.

4.  Misrepresentation (Section 18):

Section 18 defines that “when the party entered into the contract and another party commits any with the intent to deceive, breaches the duty or causes the mistake without having intention it amounts to misrepresentation.”

For example,

A believed his horse to be sound. A sold his horse to B believing it to be sound and B bought his horse. and later B found the horse to be unsound. The Statement made by A amounts to misrepresentation.

Essentials of Misrepresentation:

1. Unwarranted positive assertion
2. Breach of Duty
3. Inducing or causing a party to a contract to make mistake

Effect:

If the party that has suffered as a result of the misrepresentation when entering into a contract may choose to terminate the contract, rescind the contract within a reasonable time under the Specific Relief Act 1963.

5. Mistake (Section 20):

There are two types of mistakes mentioned in Section 20 of the Indian Contract Act,1872.

1. Mistake of Fact includes
2. Unilateral Mistake
3. Bilateral Mistake – In the Case of a Bilateral Mistake the agreement entered is void.
4. Mistake of Law includes
5. Mistake of Indian Law – In case of Mistake of Indian Law, the agreement entered is void.
6. Mistake of Foreign Law

Essentials of Mistake:

1. A mistake must be a mistake of fact and not of law;
2. Both parties to the contract must be under a mistake of fact;
3. Mistakes must be essential to the agreement.

Mistake of law:

The mistake may be related to the mistake of Indian laws, or it may be a mistake of foreign laws. If the mistake applies to Indian laws, the principle is that the law’s ignorance is not a sufficiently good excuse. This means that either party cannot claim that it is not aware of the law.

The Contract Act states that, on the grounds of ignorance of Indian law, no party can claim any relief. This will also include an incorrect interpretation of any legal provisions.

However, similar treatment is not given to ignorance of foreign law. Ignorance of foreign law provides some leeway the parties are not expected to know foreign law and its meaning. Therefore, under the Indian Contract Act, an error of foreign law is treated as a mistake of fact.

In the Indian Penal Code, the term free consent is not mentioned anywhere but there is Section 90 of the Code which states that what doesn’t amount to free consent.

Section 90 says,” A consent is not such as is intended by any section of this Code, if the consent is given by a person under fear of injury or a misconception of fact, and if the person performing the act knows or has reason to believe that the consent was given as a result of such fear or misconception;

Consent of insane person – the person who is incapable of understanding the nature and result of the act which he gives his consent;

Consent of child- unless the contrary appears from

Consent of child- unless the contrary appears from the context “if the consent is given by a person who is under twelve years of age.”

This means, that every such consent which is either obtained:

1. Under any threat, or fear of injury or the act which causes it is done under the threat of fear.
2. by an insane person, or
3. by a child under 12 years of age, shall not constitute consent under the Code.
4. Fear of injury or misconception of fact

Whether free consent is there in case of marital rape?

Section 375 of the Indian Penal Code talks about the conditions of rape and also Clauses of the said section talks about the conditions of consent which stated as

375(4) with her consent if she has given her consent by unsoundness of mind or any intoxication or when is unable to understand the nature of the act, With or without her consent, when she does not attain the age of majority,

When she is unable to give her consent.

Section 375 of IPC, nowhere mentions the provisions related to rape with the wife. However, it has always been assumed that the husband does not need the consent of his wife during sexual intercourse. Indian law is silent on the consent of the wife whether the wife has given consent for sexual intercourse or not.

But Supreme Court in The Chairman, Railway Board v. Chandriman Das, AIR 2000 SC 988, The act of committing rape is a gross violation of basic human dignity and the harm to the woman dignity.

The recent Judgement of the Right to Privacy also talks about personal liberty and the right to privacy. The same is applicable to all types of rape including marital rape where the wife has the right to denial of sexual intercourse with the husband.

Article 21 of The Constitution of India speaks about personal rights and liberty.  However, unfortunately, when it comes to marital rape, this very right is taken away as it is assumed that with the consent to marry the wife has also given lifelong consent for sex with the husband irrespective of the physical, emotional, psychological circumstances. This perspective, however, needs to be changed so that the wife can deny sexual intercourse with the husband. Right to life under Article 21 also includes “Right to deny”, but with the current societal pattern and dominant patriarchy society prevailing in the society this fundamental right often has been ignored, and also the consent of the wife has not been taken into account. therefore, “free consent” in cases of marital rape is undefined and vague in the Indian context, and therefore one cannot say that there is the consent of the wife is there during sexual intercourse or not.

Case laws-

1. Mannu Singh v Umadat Pande, the spiritual advisor prompted the plaintiff to transfer his entire property to him with the promise of securing benefits in the next life. Such a contract was deemed to be affected by undue influence.
2. RC Thakkar v Gujarat Housing Board, the Court held that the cost estimates given by the authorities in the tender notices were held to be fraud because authorities, in reality, did not calculate the estimated cost of work, and such material representation knowing to be false, is a fraudulent act.

Conclusion:

The Indian statutes are vague about the definition of free consent in some cases, where as civil law provides a clear definition of what amounts to free consent the ambiguity in criminal laws regarding free consent could only be removed by interpretation of the judicial decisions by the apex court.

Free Consent is absolutely important to make an agreement with a valid contract. The importance of free consent cannot be stressed enough. The Party’s consent must be free and voluntary. It is necessary to give consent to the contract without any pressure or delusions. It is essential that the party’s consent is free, as this may affect the contract’s validity. If the consent has been obtained or caused by coercion, undue influence, fraud, misrepresentation, or mistake, then the aggrieved person has the right to void the agreement.

References:

1. Articles by Jhabvala series
2. https://blog.ipleaders.in/free-consent-3/
3. http://lawtimesjournal.in/coercion-undue-influence-difference-between-coercion-and-undue-influence/
4. https://www.legalbites.in/effect-of-coercion-undue-influence/
5. https://blog.ipleaders.in/free-consent/#:~:text=Section%2013%20of%20ICA%20defines,minds%20between%20the%20two%20parties.