Consent is a contract between two or more parties to agree with a mutual commitment to achieve a desire or any other. Free consent in business law helps to understand all the legal rules which we need to follow in business.

What is Free Consent?

Let us define free consent as a contract based on Section 13 of the Indian contract act 1872 is, the meaning of free consent is an agreement made between two parties for the same purpose with the Union of thoughts. It is under the principle of consensus-ad-idem. It is the definition of free consent.

Free Consent Example

In order to understand more clearly, let us illustrate a case of free consent. Let us assume A and B are two parties, and 'A' had some financial crisis, so he wants to make a contract. After knowing all the information and after analyzing the situation, 'B' wants to accept the contract made by 'A'. Here the contract or agreement is made with the mutual consent of both the parties. This is nothing but the free consent of the contract.

Consent and Free Consent

Even though the meaning of both consent and free consent seems to be similar, slight differences are observed when we go through them in detail. Now we will see the differences between consent and free consent, where it varies and the importances etc. in detail as follows- 

Elements:- The elements of consent are limited to a similar purpose as well as the same sense of mind. On the other hand, the elements of free consent should be free from fraud, coercion, undue influence, misrepresentations, and other mistakes too. 

Void: The contract will be voidable if there is no consent. In contrast, the voidability of the contract will be decided by the aggrieved party in the absence of free of consent. 

Violating Factors of Free Consent

We have various factors that affect the free consent, and it relates to the voidability of the contract. So both the parties participating in your contract should be aware of these factors and should be cautious for a free flow of the contract till it's the due date. 

Those Factors are- 

  • Coercion: Coercion means the entry of either of the parties might be forceful or any of them committed to illegal activities or commitments against the Indian penal code etc. The effect of coercion leads to the cancellation of the entire contract after investigating thoroughly. The legal body will restrict the obligations of both parties in this case. If the commitment is done forcefully, clearly we can say that it is not free of consent. 

  • Undue Influence: Undue influence is there another factor to violate free consent. It occurs when one of the other parties dominates the other party in any aspect. There is a chance of taking unfair advantage because of their dominating position on the other party. The principal behind undue influence is the doctrine of equity. The effect of undue influence leads to the voidability of the contract of free consent under Section 19 A. It requires valid proof to file a case on the dominating party. Generally, the undue influence affects the below parties -

  1. Trustee and beneficiary

  2. Husband and wife

  3. Landlord and tenant

  4. A person whose mental capacity is low

  5. Old age

  6. Doctor and patient

  7. Tender age

  8. Creditor and debtor

  9. Real and apparent authority

  10. Fiduciary relationship

  11. Parent and child

  12. Adult child and parent

  13. Lawyer and client

  • Misrepresentation: According to Section 18 of the Indian law of contract, the misrepresentation is nothing but showing the false information at the beginning of the contract itself. The facts which are committed at the ground level may not be reliable, then it is considered as misrepresentation of the contract. Again here we have two kinds of misrepresentations-one is innocent misrepresentation and the other is a negligent misrepresentation. 

  • Fraud: Another important factor of free consent is a fraud. It involves the omission of promises made during the agreement, the false assertion of facts, false actions to cheat the other party, etc. and many more deceiving actions come under this fraud. According to Section 17 of the Indian law of contract, the other party has been given rights to claim for the deceived amounts as well as to revoke the entire contract and can make modifications where he got damaged.

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Hence we can understand that free consent is a mutual agreement between two parties with the same purpose and the same mental status by considering the various factors which lead to violating the contract. Among them, coercion and undue influence play a vital role. So the parties should keep noted and not mislead the contract which takes you to the cancellation of the entire contract. Then only the businesses will run smoothly, and both the parties can enjoy fruitful results.

FAQs (Frequently Asked Questions)

1. What are the Features and Importance of Free Consent? 

Ans. Free consent is an agreement made between two parties to attain the desire of any of the parties or both. The features of a perfect free consent are- 

  • The contract should not have any mistakes.

  • The contract doesn't have any misrepresentations or frauds.

  • The contract should be away from undue influence.

  • The contract should be made free of consent.

The importance of free consent is,

  • It helps to protect the validity of the contract. 

  • It prevents all kinds of malpractices.

  • It builds social relationships with mutual understanding.

  • It helps to develop jointly.

2. Distinguish between Coercion and Undue Influence.

Ans.  Both coercion and undue influence are the voidability factors of free consent; each factor affects the contract differently. So, let's see how they differ in detail - 

  • Coercion is a process of making unlawful things by one of the parties in the contract intentionally. In comparison, the undue influences are the process of dominating and utilizing more powers on the other party forcefully.

  • Coercion affects only a single partner of the contract, whereas the undue influence affects both the parties and both lead to the cancellation of the contract.

  • Coercion comes under criminal offence, and on the other hand, undue influence is not a criminal offence.

3. What do You Mean by Mistake in Free Consent? 

Ans. The Mistake is another important factor of free consent to avoid the contract. The mistake might be anything which occurred in the agreement itself. The mistakes are of two types-one is unilateral, and the other is bilateral mistakes.

Unilateral Mistake: When a single party of contract has mistaken in the agreement by knowingly or unknowingly is considered as a unilateral mistake.

Bilateral Mistake: Again, it has two divisions, namely common mistake and mutual mistake. A common mistake is a mistake that generally occurred in the norms of an agreement without prior knowledge. At the same time, mutual mistakes are considered as the misunderstandings of both the parties regarding the agreement and made mistakes innocently. This can be tried to resolve by making necessary modifications in the agreement.