Free Consent in contract law

 

Introduction

Free consent is the voluntary agreement between two or more parties without any coercion, fraud, undue influence, misrepresentation or mistake. It is an essential element for a legally binding contract or agreement. Any agreement that is made under duress or any other illegitimate pressure is considered invalid.

Definition

According to the Oxford English Dictionary:

"Consent is given voluntarily and without any coercion,fraud,undue influence or mistake and with knowledge of the nature and outcomes of the agreement or transaction."

Essentials of Free consent

The essentials of free consent are:

Ø Consent must be given voluntarily:

 Consent must be given freely without any external force or pressure. The parties must be free to accept or reject the terms of the agreement.

Ø Consent must not be obtained by fraud:

The parties must not be deceived or misleded by the other party's false statements or promises.

Ø Consent must not be obtained by misrepresentation:

 The parties must not be Influenced to enter into the agreement by any false or misleading information provided by the other party.

Ø Consent must not be obtained by undue influence:

 The parties must not be influenced by the other party's power or authority.

Ø Consent must not be given by mistake:

 The parties must have a clear understanding of the terms of the agreement. If either party is mistaken about the nature of the agreement, then the consent may not be free.

Forms of Consent

There are several forms of consent which are given below::

1.     Verbal consent:

This is when someone gives their consent through spoken or written words. For example, saying "yes" or signing a consent form.

2.     Non-verbal consent:

 This is when someone gives his consent through his actions. For example, nodding his head, or holding out his Hand to Receive something.

3.     Implied consent:

This is when someone Gives their consent through their behavior or the circumstances of a situation. For example, if someone enters a store, it can be assumed that they have given their consent to be filmed by security cameras.

4.     Informed consent:

 This is when someone gives their consent after being fully informed about the risks and benefits of a particular action or decision. For example, before undergoing a medical procedure, a patient is provided with detailed information about the procedure and its potential risks and benefits, and then gives their consent to proceed.

5.     Explicit consent:

This is when someone gives their consent in a clear and unambiguous manner. For example, someone saying "I consent" or signing a consent form with a clear and direct statement of their consent.

Age for Consent

In Most Countries, including pakistan, the age of majority is 18 years old. This means that individuals under the age of 18 are considered minors and may not be legally capable of entering into contracts.

In Pakistan, the Contract Act of 1872 Stipulates that individuals who have attained the age of majority (18 years old) are legally competent to enter into contracts. However, minors may also be allowed to enter into certain contracts, such as contracts for necessities like food, clothing, and shelter. Additionally, in some cases, a minor may be able to enter into a contract if they have the consent of their parent or legal guardian.

Consent of unsound person

In pakistan, a Contract entered into by an Unsound person who lacks the mental capacity to understand the terms and Consequences of the contract may be considered void or unenforceable. This is because the unsound person did not have the capacity to give valid consent. It is important to seek legal advice if you are unsure about the capacity of an unsound person to enter into a contract.

Need of a valid contract

In pakistan, for a Contract to be legally valid, all parties must give their genuine and voluntary consent to the terms and Conditions of the contract. Any contract obtained through force, fear, or deception may be considered void or unenforceable. It is important to ensure that all parties fully understand the terms of the contract and give their consent freely.

Reasons which make consent unfree

In Pakistan, for consent to be considered free and voluntary, it must be given without any external pressures or influences that may impact the decision-making process of one or more parties involved. If consent is obtained through any of these means, the contract may be considered void or unenforceable.

Ø Coercion

Coercion is one reason that can make consent unfree. This is when one party uses force or the threat of force to obtain consent from the other party. For instance, if one party threatens to harm the other party or their property if they do not agree to the terms of the contract, the consent given may not be considered voluntary.

Ø Undue Influence

Undue influence is another factor that can impact the freedom of consent. This occurs when one party takes advantage of the trust or relationship they have with the other party to obtain their consent. For example, if a person in a position of power, such as a lawyer, exerts undue influence over a client to sign a contract that may not be in their best interest, the consent may not be considered voluntary.

Ø Fraud

Fraud is a third factor that can impact the freedom of consent. Fraud occurs when one party deceives the other party by misrepresenting the facts or making false promises. For instance, if one party knowingly provides false information or conceals Important facts from the other party to obtain their Consent, the consent given may not be considered voluntary.

Ø Mistake

Mistake is a fourth factor that can impact the freedom of consent. This occurs when one party enters into a contract under a mistaken belief about the terms or consequences of the contract. For example, if one party mistakenly believes that they will receive certain benefits or profits from the contract, but in reality, the contract does not provide those benefits, the consent given may not be considered voluntary.

Ø Incapacity

Finally, Incapacity is a fifth factor that can Impact the freedom of consent. This occurs when one party lacks the mental capacity to understand the terms or consequences of the contract, such as in the case of an unsound person. If an unsound person enters into a contract without understanding the terms or consequences of the contract, the consent given may not be considered voluntary.

Conclusion

In Conclusion, it is important to Ensure that all parties give their Consent freely and voluntarily without any external pressures or influences. If there are doubts about the validity of a contract or the Consent of the parties involved, it is always best to Seek legal advice.

 

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