‘CONSENT’ DEFINED
Two or more persons are said to consent when they agree upon the same thing in the same sense.
FREE CONSENT : Consent is said to be free when it is not caused by:
1. COERCION (SECTION 15)
2. UNDUE INFLUENCE (SECTION 16)
3. FRAUD (SECTION 17)
4. MISREPRESENTATION (SECTION 18)
5. MISTAKE (SUBJECT TO PROVISION OF SECTION 20, 21 & 22)
FREE CONSENT SECTION (14)
When there is no consent, there is no contract. It is one of essentials of a valid contract. Parties to the contract should enter into the contract with free consent. Free consent is mentioned in sec-14. If the consent of one of parties is not free, it is no contract. If one of the above stated factors causes consent, the contract is not a valid contract. If consent in an agreement is caused by
(a) coercion or
(b)undue influence or
(c)fraud or
(d)misrepresentation,
The agreement is a contract voidable at the option of party whose consent was so caused. If the consent is caused by mistake, the contract is void.
UNDUE INFLUENCE (SECTION 16)
UNDUE INFLUENCED MEANS IS GIVEN UNDER SECTION 16 OF THE INDIAN CONTRACT ACT, 1872 AS
- A contract is said to be induced by “Undue Influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
- In particular and without prejudice to the generally of the foregoing principle, a person is deemed to be in a position to dominate the will of another –
- where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
- where he makes a contract with a person whose mental capacity is temporarily or permanently affected because of age, illness, or mental or bodily distress.
- Where a person who is in a position to dominate the will of another enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by the undue influence shall be upon the person in a position to dominate the will of the other.
Generally, undue influence in English law can be defined as ‘when a superior party uses force to his inferior person and he is in the position to dominate the will of the other person and contract formed is apparently unconscionable that the consent must have been obtained by the Undue Influence.
SECTION 16 (1) A contract is said to be induced by ‘UNDUE INFLUENCE’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
SECTION 16 (2) states that a person is deemed to be in a position to dominate the will of another—
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of
- age, or
- illness, or
- mental or
-- bodily distress.
SECTION 16 (3) states that where a person who is in a position to dominate the will of another, enters into a contract with him, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
UNDUE INFLUENCE MAKES A CONTRACT VOIDABLE at the option of the party whose will is dominated by the other party.
ILLUSTRATIONS
(a) A having advanced money to his son, B, during his minority, afterwards B attains majority.
(b) By misuse of parental influence, a bond from B for a greater amount than the sum due in respect of the advance. A employs undue influence.
ESSENTIALS OF UNDUE INFLUENCE:-
As per the definition of undue influence, the following are the essentials of undue influence;
- There must be some relation between the contracting parties.
- One of the parties to the contract dominate the will of the other
- The dominating party has taken unfair advantage of the weaker party.
- Obtained consent is unconscionable.
No presumption of undue influence can arise, merely because the parties were nearly related to each other. ( SUBHAS CHANDRA DAS MUSHIB V. GANGA PRASAD DAS MUSHIB, AIR 1967 )
1. THERE MUST BE SOME RELATION BETWEEN THE CONTRACTING PARTIES
The contracting parties must hold some relationship. For Example, employer-employee, principal-agent etc.
The parties to the contract must be well known to each other and one of the parties must be in relation with another party.
SECTION 16(2) of the Indian Contract Act, 1872, stated that undue influence can emerge into the provision on real or apparent authority and fiduciary relation. The relationship between the contracting parties can be either a real/apparent relation or fiduciary relation.
- REAL OR APPARENT AUTHORITY
The real or apparent authority is a relationship between the contracting parties where one party is superior and in a position to dominate the will of the other party. For example, Father-Son, Employer-Employee.
- FIDUCIARY RELATION
The fiduciary relationship is a relationship between the contracting parties where the relation is made up of trust or belief between the parties. FOR EXAMPLE, the Advocate and his Client, Doctor and Patient, Husband and Wife.
2. ONE OF THE PARTIES TO THE CONTRACT DOMINATE THE WILL OF THE ANOTHER
As stated above, the parties to the contract must hold a certain relationship. And, one of the parties to the contract must be in a position to dominate the will of the other party to the contract.
3. DOMINATING PARTY HAS TAKEN UNFAIR ADVANTAGE OVER THE WEAKER PARTY
One of the parties to the contract must be in the position to dominate the will of another party and the dominating party must have taken unfair advantage of his position by dominating the other weaker party.
4. OBTAINED CONSENT IS UNCONSCIONABLE
As we know, the contract is made without the free consent of the parties is voidable. Here, also in a contract, if one party is superior to the other party, it can dominate the weaker party to obtain the other party’s consent to enter into a contract.
BURDEN OF PROOF
The burden of proving that the contract was no induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. (SHRIMATI V. SUDHAKAR R. BHATKAR, AIR 1998).
REMEDY IS MENTIONED IN SECTION 19A OF ICA, 1872:-
The only remedy is that the court may set aside the contract either,
(a) absolutely, or
(b) upon such terms and conditions as the court may deem fit.
However, if the court decides to set aside the contract, the court may order the party to whom such relief is granted to restore any benefit to the other party or to make any compensation to the other party which justice may required.
ADDUCED — to give reasons why you think something is true.
INDUCED—to persuade someone to do something.
PREJUDICE—an unfair and unreasonable opinion or feeling, especially when formed without enough though or knowledge.
UNCONSCIONABLE— an unconscionable size, amount, or length of time is too great and is unacceptable.
EFFECTS OF UNDUE INFLUENCE IN CONTRACT LAW
According to SECTION 19(A) of the Indian Contract Act, 1872, stated that “An agreement induced by the Undue Influence is voidable at the option of that party whose consent was obtained by undue influence.”
So, the agreement made up by the undue influence between the contracting parties becomes voidable at the option of the party who is dominated by the other party. In such a situation, the agreement can be either a valid contract or a void contract.
LAKSHMI AMMA V/S T. NARAYANA BHATT, 1970
In this case, a person suffered from ailments and he was getting treatment in the nursing home. And, his son took care of him and also requested his father to make a gift deed of all his properties in favour of his son otherwise he will not take care of him. At this time he made a gift deed and all the properties belonging to him was gifted by him to his son excluding his other family members. The court held that the person is suffering from ailments and in this situation deed made by him is under influence of his son, the gift deed was voidable.
DISTINGUISH COERCION AND UNDUE INFLUENCE
