• Meaning and Definition of Free Consent

 People who enter into contract must give their free consent. It is the most important and essential element of valid contract. In the absence of free consent or without the free consent valid contract is completely impossible. It is essential to create a valid contract that the parties have consensus or meeting of the mind. They must agree up on something in the same sense at the same time. It gives continuous power till the entire performance of the contract.

Mutual understanding between the parties results agreement on the same thing in the same sense. Such agreements represent the real consent from the inner part of the parties which gives positive impression to performance of the liabilities created from the contract. It is easily performed and enforced. Free consent provides for a contract:

  • Meeting of the mind of parties,
  • Enforceability,
  • Legal remedy for aggrieved party.

Famous Jurist Salmond states that: If there is any error in consensus or meeting of the mind of the parties then there is no contract.

Nepal Contract Act, 2056 Sections 2(c) defines 'Consent' as the consent given by the person to whom a proposal has been presented in the same meaning of that offer but there is no any definition about the free consent. Nepal Contract Act only mentions about the void and voidable contract under section 13 and 14 respectively. In Indian Contract Act, 1872 Section 13 defines 'Consent' as two or more persons said to consent when they agree up on the something in the same sense. In conclusion, we can say consent given by a person voluntarily out of his own desire and conscience is called the free consent.

Thus consent involves identity of minds of "consensus-ad-idem". (Agreeing upon the same thing in the same sense) If, for whatever reason, there is no consensus ad-idem among the contracting parties, there is no real consent and hence no valid contract. Similarly Section 14 of the Indian Contract Act, 1872 defines free consent: Consent is said to be free when it is not caused by;

  • Coercion
  • Undue influence
  • Fraud
  • Misrepresentation
  • Mistake.

These five elements are called vitiating (to spoil or reduce the effect) factors of free consent.

If the contract is made under coercion, undue influence, fraud and misrepresentation then the contract will be voidable at the option of the aggrieved party. But when consent is caused by 'bilateral mistake' as to a matter of fact essential to the agreement, the agreement is void. If both parties are mistaken, as the matter of fact, the agreement would be void.