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FREE CONSENT.
CONSENT
Two or more persons are said to
consent when they agree upon the same
thing in the same sense. (Consensus ad
idem)
Consent is said to be free when it is not
caused by:
1: - Coercion
2: - Undue Influence
3: - Fraud
4: - Misrepresentation
5: - Mistake

COERCION
Definition:

If a party commits an offence forbidden by the PPC,

with the intention of obtaining consent of the other
party.
If the other party threatens to commit an offence
forbidden by the PPC, with the intention of obtaining
such consent.
If the other party unlawfully detains any property to
the prejudice of any person whatever, with the
intention of obtaining such consent.
If the other party threatens to detain unlawfully any
property, to the prejudice of any person whatsoever,
with the intention of obtaining such consent.
Enforcement of PPC.
Effect of coercion.
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Burden of proof.

UNDUE INFLUENCE
A contract is said to induced by Undue Influence
where the relation subsisting between the parties is
such that one of the parties is in a position to
dominate the will of the other; and
Such party uses that dominant position to enter into
a contract with the latter; and
Such party has attained an unfair advantage over
the other.
PRESUMPTION OF UNDUE INFLUENCE
A person is deemed to be in a position to dominate
the will of the other where:
He holds a real or apparent authority over the other.
Where he stands in a fiduciary relation to the other.
Where he makes a contract with a person whose
mental capacity is effected by reason of age, illness
or mental or bodily distress.
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Burden of proof:
Merely status of parties is enough to
prove that undue influence might have
been used unless the person in a
dominating position can prove that:

Full disclosure of facts was made.

The price (consideration was adequate)
The dominated party was in a position
to get free advice.
The dominated party gave free consent.
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EFFECTS OF UNDUE INFLUENCE:

The contract is voidable at the option of the
party whose consent was not freely
obtained.
DISTINCTION B/W COERCION & UNDUE
INFLUENCE

Type of Pressure.
Burden of Proof.
Nature of Transaction.
Relationship between the parties.
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FRAUD
Fraud means and includes any of the
following acts to induce the other party to enter
into a contract:

The suggestion, as a fact of that which is not true,

by one who does not believe it to be true.
Active concealment of a fact by one having
knowledge or belief of the fact.
A promise made without any intention of
performing it.
Any such act or omission as the law especially
declares to be fraudulent.
The act must have been committed to deceive
and must have actually deceived.
Any other act fitted to deceive.
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1. SILENCE AND FRAUD

Mere silence as to facts likely to effect the
willingness of a person to enter into a
contract is not fraud, unless:
A: the circumstances of the case are such that
regard being had to them it is the duty of the
person keeping silence to speak.
B: silence is equivalent to speech itself.
2. EFFECTS OF FRAUD
3. DAMAGES
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MISREPRESENTATION.

Misrepresentation means an innocent

misstatement of facts about the contract,
made by one party to induce the other
party to enter into a contract.
A misrepresentation made intentionally is
said to be fraud.
Misrepresentation means and includes: The positive assertion of that which is not
true, although the person conveying it
believes it to be true.
Any breach of duty which, without intent
to deceive, gains an advantage to the
person committing it, by misleading
another to his prejudice.
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EFFECTS OF MISREPRESENTATON
1. The contract is voidable at the option of
the aggrieved party.
2.A party to a contract, whose consent was
obtained by misrepresentation, may claim
that the contract shall be
performed and
it shall be put in the position it would have
been if the representation would have been
true.
3.If the party who was lead into believing
something by misrepresentation could
discover the truth by ordinary diligence, the
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contract would not be voidable.

DISTINCTION BETWEEN FRAUD AND

MISREPRESENTATION
Intention to deceive.
Damages.
Right to rescind the contract.
BURDEN OF PROOF:
Lies on the party who wants to set
the contract aside.
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VALID, VOID and VOIDABLE AGREEMENTS.

Valid Agreements: - An agreement enforceable by

law.

Void Agreements: - An agreement not enforceable

by law.
A: In restraint of marriage.
B: In restraint of trade. (Except seller of
goodwill, in
partnership)
C: In restraint of legal proceedings.
D: Uncertain agreements.
E: By way of wager.
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Voidable Contracts: - An agreement, which is

enforceable at the option of one or more parties
thereto, but not at the option of the other.
It is valid and binding on parties so long as it lasts.
Option to avoid it rests with one of the parties.
Party entitled to avoid contract is not bound to do
so but may affirm it.
The other party remains bound to carry it out as
agreed.

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PERFORMANCE OF CONTRACTS
Single promise
WHO CAN DEMAND PERFORMANCE
WHO MAY PERFORM
Promisor himself.
Agent of promisor.
Legal representatives.
Third party.
Joint promises
Several joint promisors; single promisee.
Single promisor; joint promisees.
Joint promisors; joint promisees.

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TERMINATION & DISCHARGE OF CONTRACTS

By performance.
a) Actual performance.
b) Offer to perform.
By supervening impossibility (Doctrine of frustration)
a) Impossibility at the time of the contract
b) Subsequent impossibility
1: Destruction of the subject matter.
2: Foundation of the contract ceases to exist
3: Change of law
4: Death or personal incapacity

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3. Mutual agreement:
A) Novation
B) Alteration
C) Recission
D) Remission
E) Waiver
F) Merger

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By lapse of time

Operation

of law:
Insolvency
Material alteration
Merger

Breach:
Actual

breach.
Anticipatory breach.
Express breach
Implied breach

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Effects of anticipatory breach:

In

anticipatory breach the promisee has

following courses of action:
The promisee is excused from performance.
May treat the contract as rescinded and sue
for damages immediately.
May ignore the conduct of the promisor; wait
till the time of actual performance and then
sue in case of failure.

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