Date: 15 November, 2020
by Nirdhar Naphade, MNLU
For a contract to be valid, it is important to ensure free consent of both the parties.
The concept of consensus-ad-idem implies that both the parties entering into a contract must mean the same thing in the same sense. The understanding regarding the terms of the contract between the parties should be on the same subject matter and should have the same footing.
As per sections 13, "two or more persons are said to be in consent when they agree upon the same thing in the same sense (Consensus-ad-idem)" and as per section 14 of the Indian Contract Act, 1872, "consent is said to be achieved in all situations except when it is obtained through coercion(section 15), undue influence(section 16), fraud(section 17), misrepresentation(section 18) or mistake(section 20, 21, 22)." These methods of rendering consent make the agreement voidable at the instance of the aggrieved party.
This means that these principles can invalidate the contract. However, if consent was obtained through mistake (of fact), then the contract is made void. This is done to give benefit of doubt to both the parties
The entire structure of law of contract is based on this concept of consent, which is given a lot of importance during any agreement.
For validating the formation of a contract, the main ingredient would be the issue of genuine and free consent of the parties. Thus, mere consent is not enough; but the consent must be obtained in a free and voluntary manner.
Consent can be given by anyone who is NOT a minor, of unsound mind, or barred by law to make a contract. Other than these, anyone can give a consent as long as it is free and voluntary.
IMPORTANT CASE LAWS
(i) Philips vs. Brooks (1919) 2 KB 243
In this case, it was established that fraud can only give rise to a voidable contract and not a void one. This means that a person who is defrauded can enforce the contract if he wishes to or can rescind it. Either way, the authority to carry out the contract is with the one being defrauded. This is done in order to empower the ones who have been fraudulently forced to form the contract. This judgement paved the way for voidability under contract law.
(ii) Mohoribibi vs. Dharmodas Ghose 30 IA 114 : 30 Cal 539 (1903)
This case explained that a minor cannot form a contract because he or she is not legally allowed to give consent under Indian Contract Act, 1872.
Indian Contract Act, 1872,
Sethi, A. (2020, June 6). Law of Contract: Free Consent (1033746950 792187617 D. Shrivastava, Ed.). Retrieved November 06, 2020, from https://www.google.com/amp/s/lexlife.in/2020/06/06/law-of-contract-free-consent/amp/