Consent and Free Consent

In one line

Consent means the parties agreed on the same thing in the same sense, and free consent means nothing bent their agreement out of shape, and the two are separate questions asked in that order.

In the words a student can write in an exam: section 13 of the Indian Contract Act 1872 provides that "Two or more persons are said to consent when they agree upon the same thing in the same sense", which is the Latin consensus ad idem, agreement on the same thing. Section 14 provides that consent is free when it is not caused by coercion (s.15), undue influence (s.16), fraud (s.17), misrepresentation (s.18), or mistake (subject to ss.20, 21 and 22), and adds that consent is said to be so caused when it would not have been given but for the existence of that factor.

Why the law asks two questions and not one

It would be simpler to have one rule: the parties must genuinely agree. The Act splits it, and the split is the key to the whole module.

The first question is whether there was any meeting of minds at all. If Ravi is selling his Nashik vineyard and Meera thinks she is buying his Pune flat, they have not agreed on anything. There is no consent, and so there is no agreement at all under section 2(e), because a proposal and an acceptance must meet.

The second question is whether the agreement that was reached was reached freely. Here the minds did meet. Both know exactly what is being sold and for how much. The problem is that one of them agreed because of a threat, or a lie, or a relationship they could not resist.

The two questions have different answers, and that is why they are separate:

• No consent at all: the agreement is VOID. There is nothing to enforce.
• Consent, but not free: the contract is VOIDABLE at the option of the injured party under section 19 or section 19A. It is a real contract, and it binds until that party sets it aside.

Getting this the wrong way round is the single most expensive error in this module, and it is why section 13 and section 14 are taught before any of the five vitiating factors.

The provisions

Section 13:

"Two or more persons are said to consent when they agree upon the same thing in the same sense."

Section 14:

"Consent is said to be free when it is not caused by

(1) coercion, as defined in section 15, or

(2) undue influence, as defined in section 16, or

(3) fraud, as defined in section 17, or

(4) misrepresentation, as defined in section 18, or

(5) mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake."