BCOC-133 IMPORTANT NOTES UNIT-4 FREE CONSENT
Meaning of consent:-it is refers to voluntary agreement or permission given by an individual. Indicating their willingness to participate in a particular action, activity or relationship.
Concepts of free consent:- free consent, in legal terms refers to a situation where individuals willingly and without any coercion, undue influence , fraud , misrepresentation or mistake agree to particular transaction or contractual agreement.
COERCION:-
What is coercion:- it involves the use of force ,threats or intimidation or compel someone to do
something against their will. In legal context , coercion can invalidate consent or agreements as it
undermines the voluntary nature of the action. Indian law prohibits coercion to protect
individuals from being pressured or manipulated into actions they would not otherwise choose.
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Committing any act forbidden by the Indian penal code:-when the consent of person is obtained by committing any act which is forbidden by India penal code, the consent is said to be obtained by coercion. (committing a murder, kidnapping, causing hurt, rape , defamation theft etc.) are some of the examples of the act forbidden by Indian law.
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Threatening to commit any act forbidden by Indian penal code
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Unlawful detaining of any property:-if a person unlawfully detains the property of another
person and compels him to enter a contract with him, the consent is said to by induced by
coercion
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Threatening to detain any property unlawfully :- if a treat held out to detain any property
of another person, this is also amount of coercion
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Intention of causing any person to enter in to an agreement:-the act of coercion must have
been done with the object of inducing or compelling a by person to enter into an contract
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Threat to file suite:-its not coercion because its not forbidden by Indian penal code
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Threat to commit suicide:-according Indian penal code its not punishable ,but an attempt to commit suicide is punishable
Effect of coercion:-particularly the contract is that agreement made under coercion are generally
considered voidable. It means that the effected party , the one subjected coercion has the option
to either affirm or reject the agreement, if they reject it the contact becomes void. In this case he
has to restore the benefit under this contract.
Burden of proof:- it proving that consent was induced by coercion lies on the party who wants to
avoid the contract.
UNDUE INFLUENCE
What is undue influence:-it refers the situation where one party in relationship exercises a
significant amount of influence over another ,improper or unfair use of one’s superior power in
order to obtain the consent of person who is in a weaker position. In legal terms, contract or
transactions entered into under influence my be considered voidable.
Presumption of domination of will:- undue influence involved only when one party in a position to dominate the will of other. When
Relation between parties is not necessary Consent given under threat of an offence It involves physical force or threat Undue influence parties
FRAUD
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deceived as a result of relying on the false representation
Does silence amount to fraud:-in generally silence alone doesn’t typically amount to fraud unless there is a legally duty to disclose information. If there is specific duty to speak and a party deliberately remains silent to mislead or deceive another, then it might be considered fraudulent. Duty to speak arise in following cases:-
1.fiduciary relationship 2.contact of absolute faith
Consequences of fraud:-
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Voidingofcontact:-acontactenteredunderfraudulentcircumstancesmaybevoidable,
allowing the victim of fraud to cancel the contact
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Civilremedies
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Criminalcharges
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Recission
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Suefordamages
MISREPRESENTATION :-
What is misrepresentation :- it involving making a false statements or presenting misleading
information that induce someone to enter into a contract or take some other action. Unlike fraud ,
misrepresentation does not necessarily involve the intent to deceive . it can occur due to
negligence , innocent mistakes or lack of responsible care in verifying the accuracy of the
information provided.
There are different type of misrepresentation:-
1. Innocentmisrepresentation:-thisoccurwhenfalseinformationisprovidedwithoutany knowledge of its falsity
2. Negligencemisrepresentation:-ithappenswhenfalseinformationprovidedduetolackof responsible care in checking accuracy.
3. Fraudulentmisrepresentation:-thisissimilartofraud,involvingaknowinglyfalsestatement made to deceive another party
Effect of misrepresentation :-
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Recissionofcontract:-thepartywhowasmisledbythemisrepresentationmayhavethe
right to rescind or cancel the contact. This allows them to be released from their obligations
under the contact
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Damages:-misledpartymaybeentitledtoclaimdamages
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Voidable contact :- the affected party can choose whether to affirm or void the contract
Distinction between fraud and misrepresentation:- Fraud
Wrong statement is made intentionally
The person making the wrong statement does
not believe it to be true
There is an intention to deceive
Rescinding the contact, the aggrieved party
can also claim the damages
Misrepresentation Wrong statement made innocently
The person making the wrong statement
believes it to be true
There is no intention to deceive
The aggrieved party can rescind the contact
but cannot claim the damages
MISTAKE:-
Wat is mistake:- in a legal term mistake refers to an error or misconception that leads to an
incorrect understanding or judgment of a fact or circumstance. Mistake can be classified into
different categories. Each with its own legal implications:-
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Mistakeoflaw:-generallymistakeoflawarenottypicallyavalidreasontovoidcontract, parties are assumed to know the law, and ignorance as a valid defense
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Mistakeoffact:-itinvolvesanerroraboutfactorsetoffact.Ifthemistakeismutualand material it might be grounds for rescinding a contract, it includes :-
3.Bilateral mistakes:-when both parties to an agreements under a mistake of fact essential to the agreement. To declaring the agreement void under this section. The three following condition must satisfied
a. Bothpartiesunderthemistake
b. Mistakemustbeoffactandnotoflaw
c. Mistake must relate to essential fact
Bilateral mistakes may be (a) mistakes as to subject matter or (b) mistakes as to possibility of
performance
4.Unilateral mistake:- occurs when one party makes an error , but the other party is aware of the
mistake or has no reason to believe it exist. Generally unilateral mistake does not provide a basis
for avoiding a contact.
The following cases even though the mistake is unilateral, the agreement is void
1.mistake as to the identity of the person contracted with:- mistake as to the identity of the
person violates a contract
2. mistake as to the nature of the contract :-the contact is void when one of the parties, without
any fault of his own, makes mistake as to the very nature of the contract.
Effect of mistake :-
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When the both parties to an agreement are under mistake as to a matter off act essential to
agreement , the agreement is void
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In most cases of unilateral mistake, the contract is not void, but where unilateral mistake
defeats the true consent of the parties, the agreement treated as void
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Any person who has received advantage under such agreement ,he is bound to restore it or
to make compensation for it , the person who he had received it
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A person to whom money has been paid or anything delivered by mistake must repay or
return it .
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