Table of Contents
Consent is one of the essential elements of a valid contract. For a valid contract, the parties must not only consent to the agreement but their consent must also be free.
Meaning of Consent [Section 13]
Section 13 of the Indian Contract Act, 1872 provides:
“Two or more persons are said to consent when they agree upon the same thing in the same sense.”
Thus, the parties must agree upon the same thing and in the same sense. This is known as consensus ad idem, meaning “meeting of minds”.
The expression “same thing” refers to the whole content of the agreement. Therefore, if the parties have a fundamental difference regarding the nature of the transaction, the person with whom they are dealing, or the subject matter of the agreement, there is no consent.
- For example, if two persons enter into a contract concerning a particular ship, but each of them has a different ship in mind because of a similarity in their names, there is no agreement between them. They are not ad idem, i.e., they are not of the same mind.
Similarly, ambiguity in the terms of an agreement or a fundamental error regarding the nature or subject matter of the transaction may prevent the formation of a contract. Thus, in the absence of consent, there can be no contract.
Case: Raffles v. Wichelhaus (1864) (The Peerless Case)
The parties agreed to buy and sell a cargo of cotton to arrive ‘ex Peerless’ from Bombay. Unbeknownst to both parties, there were two ships named Peerless leaving Bombay; one in October and another in December. The buyer meant the October ship, while the seller meant the December ship. The Court held that the contract was void for total lack of consent. Since the minds of the parties never met on the same subject matter at the same time, there was no consensus ad idem under what is now encapsulated in Section 13.
Meaning of Free Consent [Section 14]
Consent may be free or not free. Only free consent is necessary for a valid contract.
According to Section 14, consent is said to be free when it is not caused by:
- Coercion – Section 15
- Undue Influence – Section 16
- Fraud – Section 17
- Misrepresentation – Section 18
- Mistake – subject to Sections 20, 21 and 22
Thus, consent is not considered free when a person’s decision to enter into the agreement is affected by any of the above factors.
Effect of absence of Free Consent
When consent is caused by coercion, fraud, misrepresentation or undue influence, the agreement becomes a voidable contract at the option of the party whose consent was so obtained.
Where consent is affected by mistake, the effect depends upon the type of mistake. In cases covered by the relevant provisions of Sections 20, 21 and 22, the agreement may become void.
Therefore,
- Consent – Refers to agreement upon the same thing in the same sense.
- Free Consent – Refers to consent without coercion, undue influence, fraud, misrepresentation or relevant mistake.
Distinction Between Absence of Consent and Defective Consent
- No Consent at All (Section 13 - Consent Unlawful/Absent): Where there is a total absence of consensus ad idem (such as a fundamental mistake as to identity or subject matter), the agreement is void ab initio. No contract ever comes into existence.
- Consent Present but Vitiated (Section 14 - Consent Not Free): Where parties agree on the same thing in the same sense, but consent was induced by coercion, undue influence, fraud, or misrepresentation, a contract comes into existence, but it is voidable at the option of the aggrieved party (Sections 19 and 19A).
