Ad idem
- 1. Name: Anam Amjad Reg #: mb103088 Date: 2 -04-2012 Course: Introduction to Business Law Section: 04 Assignment No: 02 Description: Note on Free consent Submitted to: Mr. Raja Akbar
- 2. FREE CONSENT AD IDEM It is essential to the creation of a contract that the parties are ad idem i.e. they agree upon the same thing in the same sense at the same time and that their consent is free and real. WHAT IS A CONSENT: IT means acquiescence or act of assenting to an offer. “Two or more persons are said to consent when they agree upon the same thing in the same sense” (Sec 13) WHAT IS FREE CONSENT: Consent is said to be free when it is not caused by: Coercion as defined in Sec.15 Undue influence as defined in Sec.16 Fraud as defined in Sec.17 Misrepresentation as defined in Sec.18 Mistake, subject to the provisions of Secs.20,21 and 22 (Sec.14) WHAT HAPPENS WHEN THERE IS CONSENT: WHEN THERE IS NO CONSENT, THERE IS NO CONTRACT. Salmond describes it as Error in Consensus. If there is no consensus ad idem, there is no contract. CASE: Bala Debi Vs S.Majumdar An illeterate women executed a deed of gift in favor of her nephew under the impression that she was executing a deed authorizing her nephew to manage her lands. The evidence showed that the woman never intended to execute such a deed of gift, nor was the deed ever read or explained to her. Held, the deed was void and inoperative
- 3. COERCION When a person is compelled to enter into a contract by the use of force by the other party or under a threat, “coercion” is said to be employed. Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, 1860 or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. COERCION INCLUDES: • Fear • Physical Compulsion • Menace to goods EFFECT OF COERCION: When consent to an agreement is caused by coercion, fraud or mispresentation, the agreement is a contract voidable at the option of the party whose consent was so caused (Sec.19) According to Sec.72, a person to whom money has been paid, or anything delivered by mistake or under coercion, must repay or return it. UNDUE INFLUENCE Sometimes a party is compelled the enter into an agreement against his will as a result of unfair persuasion by the other party. This happens when a special kind of relationship exists between the parties such that one party in a position to exercise undue influence over the other. “A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other” A person is deemed to be in a position to dominate the will of another: a. Where he holds a real or apparent authority over the other. E.g.: Relationship between master and servant. b. Where stands in a fiduciary relation to the other. E.g.: Father and Son, Solicitor and client, promoter and company
- 4. c. Where he makes a contract with a person whose mental capacity is temporarily or permanently affected . by reason or age, illness or mental or bodily distress. EFFECT OF UNDUE INFLUENCE: When consent to an agreement is obtained by undue influence, the agreement is a contract voidable at the option of the party whose consent was so obtained. Any such contract may be set aside either absolutely or if the party who is entitled to avoid it has received any benefit there under, upon such terms and condition to the court may seem just and equitable. E.g.: A’s son has forged B’s name to a promissory note. B under threat of prosecuting A’s son obtains a bond from A for the amount of the forged note. If B sues on this bond, the court may set the bond aside. MISREPRESENTATION Misrepresentation may be: i. An innocent or unintentional misrepresentation or ii. An intentional, deliberate or willful misrepresentation with an intent to deceive or defraud the other party. The former is misrepresentation and the later is fraud. WHAT IS MISREPRESENTATION: It is a false statement which the person making it honestly believes to be true or which he does not know to be false. It also includes non-disclosure of a material fact or facts without any intent to deceive the other party. FRAUD Fraud exists when it is shown that – 1. A false representation has been made Knowingly or without belief in its truth or recklessly, not caring whether it is true or false and the maker intended the other party to act upon it , or 2. There is a concealment of a material fact or that there is a partial statement of a fact in such a manner that the withholding of what is not stated makes that which is stated false.
- 5. ESSENTIAL ELEMENTS OF FRAUD: 1. There must be a representation or assertion and it must be false. 2. The representation must relate to a material fact which exists now or exists in the past: 3. The representation must have been made before the conclusion of the contract with the intention of inducing the other party to act upon it. 4. The representation or statement must have been made with a knowledge of its falsity or without belief in its truth or recklessly, not caring whether it is true or false. 5. The other party must have been induced to act upon the representation or assertion. 6. The other party must have relied upon the representation and must have been deceived: 7. The other party, acting on the representation or assertion, must have subsequently suffered some loss. MISTAKE It may be defined as an erroneous belief about something. MISTAKE Mistake
- 6. MISTAKE OF LAW 1. Mistake of law of the county: A mistake of law is, therefore, no excuse, and the contract cannot be avoided. 2. Mistake of law of a foreign country: Such a mistake is treated as mistake of fact and the agreement in such a case is void. MISTAKE OF FACTS: 1. Bilateral Mistake: Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, there is a bilateral mistake. In such case, the agreement is void. CASES WHICH FALL UNDER BILATERAL MISTAKE: Mistake as to the subject-matter: Mistake as to the existence of subject-matter Mistake as to the identity of the subject-matter Mistake as to the quality of the subject-matter. Mistake as to the quantity of the subject-matter Mistake as to the title of the subject matter Mistake as to the price of the subject matter. Mistake as to the possibility of subject matter. Physical Impossibility Legal Impossibility 2. Unilateral Mistake: • When in a contract only one of the parties is mistaken regarding the subject-matter or in expressing or understanding the terms or the legal effect of the agreement, the mistake is a unilateral mistake. • According to Sec.22 a Contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact. • A unilateral mistake is not allowed as a defense in avoiding a contract unless the mistake is brought about the other party’s fraud or misrepresentation