FREE CONSENT
To make a contract valid, not only consent is necessary,
even it should also be free. In law of contract consent is said to
be free if it is not caused by any of the following: 1.
2.
3.
4.
5.
Coercion
Undue influence
Fraud
Misrepresentation
Mistake
There is a distinction in between consent and free
consent. If consent is affect or taken by one of the above
express elements than it will be not deemed as free consent.
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Coercion
1.
Coercion is the committing or threatening to
commit any act which is Unlawful or Threatening
to detain any property, of any person, with the
Intention of causing any person to enter into an
agreement.
2.
Examples: - After giving a good beating to A,
B makes him to agree to sign a promissory note
for Rs 1000.
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Types of Coercion

Threat to commit Suicide:An attempt to commit suicide is an offence
and it is also type of coercion.

Threat to file a suit.

Threat to act some unlawful acts.

Threat to detain property of any person.
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Essentials of Coercion

The act must have been done with an
Intention of causing any person to enter
into an agreement.

Coercion can be applied either by a party
to the contract or even by a stranger.

It may be applied against a party to the
contract or any other person.
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Effect of Coercion

When the consent of a party to an agreement is
obtained by coercion, the contract becomes
voidable at the option of the party, whose
consent is so obtained.

The burden of proving that the consent was
obtained by coercion shall be upon the party
who wants to set aside the contract on the plea
of coercion.
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Undue Influence
Undue influence is the improper use of any power
possessed over the mind of the contracting party.
A contract is said to be affected by undue
influence when:1.
The relations subsisting between the parties are
such that one of the parties is in a position to
dominate the will of the other.
2.
Uses that position to obtain unfair advantages
over the other.
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Undue Influence Continues..
3.
In following three cases law presumes a person to be in a
position to dominate the will of the other:-

Where one person holds a real authority over the
other(Master or servant, parent and child)

Where he stands in a fiduciary relationship(religious guru
and disciple, trustee and beneficiary, doctor and patient,
lawyer and client)

Where one person makes a contract with a person whose
mental capacity is temporarily or permanently affected by
reason of age, illness or mental or bodily distress.
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Burden of proof

To prove that the contract has been affected by
undue influence, all the three essentials discussed
above must be proved in the order in which they
are written.

When the first two points are proved in a
contract, the burden of proving the use of the
dominant position to obtain the unfair advantages
will lie on the party in a position to dominate the
will of the other.
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Effect of Undue Influence
An agreement caused by undue
influence shall be voidable
at the option of the party whose
consent has been so obtained.
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Difference between Coercion & Undue Influence

Mode of obtaining consent: - In both coercion and undue
influence the consent of the aggrieved party is not free. But in
the case of coercion the consent of the aggrieved party is taken
by committing or threatening to commit an illegal act. While
in undue influence the consent of the aggrieved party is
obtained by dominating the party by taking an unfair
advantage of his position.

Type of force: - in case of coercion physical force is exercised
while in undue influence, morel force is used.

Existence of relationship: - in case of coercion, relationship
between the promisor and the promise is not necessary. While
in case of undue influence, some sort of relationship must exist
between the two parties to the contract.
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