ELEMENTS WHICH VITIATE THE CONCEPT OF FREE CONSENT: A CRITICAL ANALYSIS by -Akshita Jha

ABSTRACT

Any act done without the application of any external illegal force is referred to as free consent. Further explaining we can say any act done without the use of any illegal force or where the parties voluntarily enter into the contract is referred to as free consent. But there are some elements like coercion, undue influence, mistake, and fraud which involve the usage of certain illegal methods, this involvement of illegal terms is the reason why these these terms are referred to as the factors which violate free consent. Further summarising it can be said due to these terms violating the basic concept of free consent they are referred to as the violating factors free concept. Through this research paper lets critically analyse as to how these factors can contribute to violation of the concept of freeconsent. Through this research paper we will also draw a comparative analysis between the past and current scenarios concerning these terms.

KEY WORDS: Free consent, coercion, undue influence, mistake, fraud

INTRODUCTION-

Defined in section 13 of the Indian contract act² the term “consent” refers to the situation where twoparties agree upon the same thing in same sense. Now for a contract to be valid we must ensure that it has to be given by free will of the parties, involving no external pressure or force. Section 10³ of the Indian contract act states that all agreements are contracts if they are made by free consent of the parties. Section 14⁴ of the Indian contract act states that when the consent is free from the interruptions of all the illegal elements like coercion, fraud, undue influence, mistake and misrepresentation. Example: A at a gun point, makes B agree to sell his house to A for 40,000. Here B’s consent has been obtained by coercion therefore this kind of consent can’t be regarded as free consent. Now lets have a glance through these terms which are said to violate free consent. The first in this row is coercion, coercion refers to a situation where a person is forcefully compelled to enter into a contract, further elaborating coercion is

committing any act forbidden by
Threatening to commit any act forbidden by
Threatening to commit unlawful detaining of property
Threatening to file a suit
Threatening to commit a succeed

The second element in this line is undue influence. Undue influence as defined in Section 16(I)⁵ of the contract act describes a situation where one of the parties is in a position to dominate the otherparty

The third element violating free consent is fraud refers to a situation where one party is deceived byanother party due to wilful misrepresentation of facts.

The fourth one is mistake. Whenever the formation of contract takes place through mistake they are considered to be formed without consent and are hereby declared void. Mistake can be further divided into mistake of law and mistake of facts. Mistake of facts can be acceptable at certain situations but mistake of law is clearly unacceptable. The last one is misrepresentation, defined in section 18 ⁶of the Indian contract misrepresentation refers to a situation where a representation is wrongly made either knowingly or unknowingly.

RESEARCH OBJECTIVES

The Main Objective of my research is to:

To understand what is consent
To understand what is free consent
To perform a careful study of all vitiating factors of free consent
To perform a careful analysis of how these factors can be contributing factors to violating theconcept of free consent

To Perform a thorough analysis of the current scenario of the

RESEARCH QUESTIONS

What is consent?
What is free consent?
What are the terms which are known to be vitiating the concept of free consent?
What are the impacts of these vitiating elements on society?
What are the impacts of these elements in current scenario?

RATIONALE OF STUDY

The main objective of me choosing this research paper is to firstly understand the concept of con- sent, then further trying to understand what is free consent and how is it important for a society as awhole. Then the third aim was to go through a in-depth analysis of the terms like fraud misrepresentation, undue influence and coercion and understand by what reasons these terms can be called a vitiating element to the concept of free consent. One of the most important motive to study the societal impacts of these vitiating elements, analysing the future impacts was also one of the reasons for opting for this research paper. Analyzing the cons of these terms on these practises on the young minds and further their contribution to the society in a negative manner was also one of the reasons for opting for this study.

STATEMENT OF PROBLEM-

The main issue addressed in this research paper is how the simple looking terms like coercion un- due influence misrepresentation fraud can contribute to be a violating factor to the concept of free consent..We can further examine how these factors just because of a presence of a illegal factor can be a violating factor towards the concept of free consent. The most important issue addressed in re- search paper is regarding the societal and future impacts of these terms. The most important issue addressed in this research paper is how the presence of these vitiating toxic elements in society can negatively impact the young minds of our society and they might grow up with u with such kind of negativity and toxicity—The term free consent refers to the situation where the person is obtained voluntarily without the application of any external illegal force. But in many instances this concept is violated and further speaking we can say violation of this concept by the use of certain terms like fraud misrepresentation coercion and undue influence can create disturbances in society as people will start protesting about their basic rights being violated. Now lets critically analyse how these terms are considered a bane for the society. First comes the coercion, if any person is forced to enter into a contract today due to any circumstances they may revolt or fight for justice in such a manner that might create nuisance or havoc in society .Next in the row is undue influence in such situations where the other person using his authority dominates the other, this will set a wrong example for our future generation as they will also inherit the same things which will further leave a negative impact on society. Thirdly lets talk about fraud, these days many kinds of ,frauds are taking place over the internet, as well as in personal, which further leads to lack of trust among consumers as once if they have been a victim of fraud they can never trust any company or any organisation with their business techiques, because trust broken is a very tough task to be restored. Now lets talk about mistake. Further elaborating we can say mistake is of two types mistake of law and mistake of fact. But in both these cases a small mistake can cost a lot to the aggrieved person as anyone who is already suffering plus becomes a victim of any kind of mistake faces a lot of mental trauma plus societal pressure adds to the sufferings of the victim as in both the cases(mistake of law and mistake of fact),the society also will leave no stone unturned to make the life of the victim no less than a hell. The last one in the row is misrepresentation ,if any person or organisation or any website misrepresents itself to be Someone else and commits something unjust or wrong ,the next time even if they try to do something nice we will have trust issues and hence we won’t be able to trust that person. Further elaborating we can say this can contribute to creating a gap due to differences between people. These days the concept of free consent has evolved largely as these days for any small thingsthe concept of democracy is involved and free consent is highlighted, as for any small contract also we need a free consent or else people may claim that their rights are violated.

LITERATURE REVIEW

ARTICLE-

Why coercion is wrong and when its wrong,by Benjamin sachz” ⁷

Basics of coercion
Arguments concerning Why coercion is wrong and when its wrong
Harmful effects of wrongful coercion
This article spoke about the basic meaning of coercion and how can it be harmful for a society

2) Common mistakes in State contract law, By David capper” ⁸

This article speaks about

What is a mistake
Analysis of different authors as to why a contract cold be rendered void due to a mistake
Effects of mistake in law
This article about basics of mistake and about authors arguments regarding mistake

3) Misrepresentation of Randomised controlled trials in press release, By Amelie Yavchitz’’ ⁹ This article talks about:

Situations where newspaper facts are
Importance of a sorted newspaper facts
Analyse whether newspaper findings are misinterpreted or

4) Undue Influence:Vindicating relationships of influence,By Mindy Chen’’¹⁰

This article speaks about:

Basic meaning of undue influence
Analysis of the situations where undue influence can harm relationships
This article spoke about undue influence and basic situations whee undue influence can harm rela-tionships

5) Accounting Fraud: a literature review, by Matteo merlo’’¹¹

This article speaks about

Basic meaning of fraud
Basic features of accounting fraud
Steps to prevent fraud
Importance of ethical education to prevent fraud

Judicial precedents in 18th and 19th Century-

1. COERCION-

RANGAYANAKAMMA VS ALWAR SETTI, 1889

Facts – A women was forced to adopt a child with the threat that her husband’s dead body won’t beremoved unless she adopts the boy.

Judgment- It was held that this contract is void as the consent was obtained through coercion¹².

2. FRAUD

DERRY Vs PEEK ,1889

Facts- Prospectus released by Defendants Company stated that company was permitted to use tramspowered by steam, rather than horses

Judgement- The court held that the claims of shareholders will be rejected as the dishonesty of directors was not proved. ¹³

3. MISTAKE-

TARSEM SINGH v. SUKHMINDER SINGH,1998

Facts- Tarsem forgets to execute the deed due to which plaintiff sues him for specific performance.

Judgement- It was held that if both the parties are under a mistake of fact then the contract will bedeclared null and void ¹

Derry vs Peek(1889) UKHL 1
Tarsem Singh vs Sukhminder Singh (1998 SC)

4.MISREPRESENTATION

BINDU SHARMA vs RAKESH SHARMA,1997

Facts- Appeal was filed by a wife seeking annulment of her marriage

Judgement- In this case it was held that in matters of matrimony, qualification of a spouse is of immense importance and hiding the same would amount to misrepresentation.¹⁵

5. UNDUE INFLUENCE-

INDER SINGH vs DAYAL SINGH,1926

Facts-Dayal singh contracted with Inder Singh for selling his land

Judgement- It was held that if one party taking the temporary or permanent advantage of anothermental condition, they are said to be committing undue influence. ¹⁶

CRITICAL ANALYSIS OF JUDGEMENTS

In all of the above mentioned judgements we see that the victim either due to his physical incapability or due to his lower position had to suffer a lot. They were subjected to daily humiliation and torture just because they are ranked lower in society. This can have a negative impact on the future generations as seeing all these activities right from the childhood can have a very negative impact on their growing minds and they can intern create more ruckus in society’s they will grow up with anegative and toxic mindset.

JUDICIAL PRECEDENTS IN CURRENT SCENARIO

– Ram Rattan vs Fateh Singh,2018

Facts- This case was filed by the petitioners on the claim that the respondent is a poor lady and that her claims would not be considered valid.

Judgement- It was held that plaintiff would be eligible for compensation because the defendants took advantage of her poor state and conducted a fraud with her.

CRITICAL ANALYSIS

The term free consent refers to the situation where the person is obtained voluntarily without the application of any illegal force. But in many instances this concept is violated and further speaking we can say violation of this concept by the use of certain terms like fraud misrepresentation coercion and undue influence can create disturbances in society as people will start protesting about their basic rights being violated. Now lets critically analyse how these terms are considered a bane for the society. First comes the coercion, ifany person is forced to enter into a contract today due to any circumstances they may revolt or fight for justice in such a manner that might create nuisance or havoc in society .Next in the row is undue influence in such situations where the other person using his authority dominates the other, this will set a wrong example for our future generation as they will also inher- it the same things which will further leave a negative impact on society. Thirdly lets talk aboutfraud, these days many kinds of, frauds are taking place over the internet, as well as in personal, which further leads to lack of trust among consumers as once if they have been a victim of fraud they can never trust any company or any organisation with their business techiques, because trust broken is a very tough task to be restored. Now lets talk about mistake. Further elaborating we can say mistake is of two types mistake of law and mistake of fact. But in both these cases a small mistake can cost a lot to the aggrieved person as anyone who is already suffering plus becomes a victim of any kind of mistake faces a lot of mental trauma plus societal pressure adds to the sufferings of the victim as in both the cases (mistake of law and mistake of fact), the society also will leave no stone unturned to make the life of the victim no less than a hell. The last one in the row is misrepresentation, if any person or organisation or any website misrepresents itself to be Someone else and commits something unjust or wrong, the next time even if they try to do something nice we will have trust issues and hence we won’t be able to trust that person. Further elaborating we can say this can contribute to creating a gap due to differences between people. These days the concept of free consent has evolved largely as these days for any small things the concept of democracy is involved and free consent is highlighted, as for any small contract also we need a free consent or else people might revolt. Comparing these situations in present day we can say these days the people involved to keep a check on these measures are only misusing their powers, like these days when any victim goes to file an FIR, the police exploits them o the basis of rank and gender.

SUGGESTIONS

As a researcher I would like to suggest that as long as these vitiating elements exist in the society, there can never be scope of peace in society as these terms in some or the other way contribute to a a toxic atmosphere where the consent will not be voluntarily it will be violated by the presence of these factors. Further we can say if these terms continue to violate the concept of the free consent then a timewill come where the situation will be no less than that of Nazi Germany. Therefore stringent measures to keep a check that these violating factors don’t harm the society at a large.

CONCLUSION

To conclude and summarise the above mentioned points I would like to say that as long as these vitiating elements will continue to violate the concept of free consent piece can never be restored in society, and if these practises continue to exist in society the present young generation will also inherit this and further contribute to a negative manner in a society, so if we actually want peaceful and healthy environment we should at the earliest impose stringent measures so that these practises are checked and we can live in a peaceful and healthy surrounding.

BIBLIOGRAPHY

– Books

University College THE LITTLE BOOK OF BIG SCAMS, EDITION 5
Avatar Singh, Contract and Specific Relief act, Edition 12

– Website Databases

1) WWW.SSCONLINE.COM

2). WWW.MANUPATRA.COM

RESEARCH GATE.COM
JSTOR.COM

¹ Student at NMIMS Bangalore.

² Indian Contract Act,1872,Section 13

³ Indian Contract Act,1872,Section 10

⁴ Indian Contract Act,1872,Section 14

⁵ Indian Contract Act,1872,Section 16

⁶ ICA, 1872, Section 18

⁷ BENJAMIN SACHS.,Why coercion is wrong and when its wrong ,available at https://philpapers.org/rec/ SACWCI

⁸ David capper, common mistakes in contract law,available at https://papers.ssrn.com/sol3/papers.cfm?abstrac- t_id=1543639

⁹ Amelie Yavchitz,Misrepresentation of Randomised controlled trials in press release, available at https://journals.p-los.org/plosmedicine/article?id=10.1371/journal.pmed.1001308

¹⁰ Mindy Chen,Vindicating relationships of influence, available at https://www.researchgate.net/publication/ 259604382_Undue_Influence_Vindicating_Relationships_of_Influence

¹¹ Matteo Merlo,Accounting fraud: a literature review, available at https://www.researchgate.net/publication/330697764_Accounting_fraud_A_literature_review

¹² Ranganayakamma vs alwar setti (1889) I.L.R 13.MAD 214

¹⁵ Bindu Sharma vs Rakesh Sharma Air 1997 All 429

¹⁶ Dayal Singh vs Inder singh (1926) 28 BOMLR 1372