What is consent and free consent? When consent is said to be free?
Introduction
Consent is a very important essential of the contract because without the consent of parties there is no valid contract. When consent is be taken by coercion, undue influence, misrepresentation or mistake the agreement is voidable which can be canceled on the option of that party whose consent was taken by unfair means. Free consent is the foundation of a valid contract. Without free consent any agreement cannot bear the status of a valid contract. Without free consent any agreement does not amount the valid contract and such contract cannot be enforced by the court of law
Definition of consent
When all the parties of a contract may agree upon the same thing in the same sense is called consent
Definition of Free consent
Consent will be considered free when it has been taken without coercion, undue influence, fraud, misrepresentation or mistake
Age of consent
Consent only can be given by an adult. A consent which is given by minor in contract will be considered invalid. The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. The ages of consent are currently set 18 years.
Consent of unsound person
A consent which has been taken by an unsound person has no legal value. If a contract has been made upon such consent in this case such contract shall be void. Because unsound person is unable to judge the consequences of his consent against any agreement that’s why such contract has no value in the eye of the law and it is not enforceable by the law
Essentials of consent
Following are the essential of consent
Free consent
It is also necessary that the consent should be free from any pressure. Free consent is one of the essential elements of a valid contract. Parties to a contract may agree upon the same thing in the same sense.
Coercion
Consent should be free from coercion. Such consent is the most important element of the valid contract.
Undue influence
Consent should be free from undue influence which can be a mental or physical threat.
Misrepresentation
False statements in the agreement can cause the contract to be void. So there should be no Misrepresentation between the parties
Fraud
Consent should be free from fraudulent element
Types of consent
Following are the three types of consent
Explicit Consent
Explicit consent also known as direct consent which means that an individual has been given options to agree or disagree with the treaty even after disclosure of personal information
Implied consent
Implied consent also known as indirect consent which means that an individual who has not been given options to agree or disagree with the treaty even nothing to disclose upon him about personal information
Written consent
Written consent also known as informed consent which means an individual who gives consent even after knowing the all written risk involved which may occur in the future and promise may disclose sufficient information upon him
Reasons which makes consent unfree
Case law
It was held that If a contract has been made by obtaining consent by coercion of a party, it does not remain a free consent, and the contract becomes voidable
Following are the reasons which make the consent unfree
Coercion
When consent for an agreement is taken by coercion, the contract becomes voidable at the option of the party whose consent was taken by coercion. But If such party want to continue this agreement then contract shall be valid in the eye of law
Undue influence
Undue influence is a mental or moral threat. When consent for an agreement is taken by undue influence, the contract becomes voidable at the option of the party whose consent has been taken by undue influence.
Fraud
The element of fraud in a contract makes the contract voidable in the eye of law and there is no legal obligation on the parties. The contract becomes voidable at the option of the party whose consent has been taken by fraud
Misrepresentation
When a false statement is made with the knowledge that it is false in order to get consent of the party in this case, contract become voidable at the option of the party whose consent has been taken by Misrepresentation
Mistake
Sometimes, one or both parties are working under some misunderstanding about facts relating to the subject matter of the contract and enter into a contract. Because such contract is based on a mistake so in this case it is not free consent and contract is voidable
Conclusion
Free consent is the consent which is obtained by the free will of the parties. Free consent is an essential element of the valid contract. A contract is voidable if there is no free will and consent of the parties have been taken by undue influence, mistake, fraud or Misrepresentation in such cases contract is void and there is no obligation on the parties and they cannot take legal actions against one another. It is not free consent which is necessary for the validity of a contract there are a lot of other factors which makes contract valid