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    Thursday, 26 February 2015

    Consent and Concept of free consent


    1. Consent

    Two or more persons are said to consent when they agree upon the same thing in the same sense. Section 13.

    (a) Consent
    Consent is a legal term of wide import which would include both express and implied consent. Tacit consent and connivance would also fall within the legal import of the term.

    (b) Intention to execute
    In the case of a person who is sue juris and not under any disability, the mental act of intending the execution is presumed, where there is admission of execution, or where the execution is proved.

    (c) Consent by agent
    An agent’s consent on behalf of his principal is as effective and binding on the latter as when the same is given by himself.

    (d) Consent must be unconditional
    No effective contract can come into existence unless the parties are ad idem on all the essential terms of the transaction. Hence an acceptance which does not cover all the terms of contract under negotiation does not succeed in bringing about a binding contract between the parties.

    (e) Pardahnashin woman
    A pardahnashin lady, in the true sense of that term is a lady living in seclusion that is, the ‘zanana’ and having no communication with any male stranger except from behind a screen. But the definition is not to be applied strictly. The Court has to look to all the circumstances of a particular woman to see whether or not she ought to be given the protection which is given by law to a pardahnashin woman. The rule of law, which is applicable to pardahnashin ladies, is to protect the weak and helpless and consequently such a rule should not be restricted to that class only but should apply to the case of a poor woman who is equally ignorant and illiterate though not a pardahnashin woman in the strict sense of the term.



    2. Free Consent

    Consent is not to be free when it is not caused by coercion, undue influence, fraud, misrepresentation, or mistake. Sec 14.

    3. Coercion

    ‘Coercion” is the committing or threatening to commit, any act forbidden by the Pakistan Penal Code or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. Sec 15.

    (a) Threat of prosecution
    The mere fact that an agreement was entered into under fear of criminal proceedings is not sufficient to avoid the agreement on the ground of coercion. Simply because a creditor threatens his debtor to involve him in a criminal case, it will not be coercion if there be some basis of such a prosecution. It follows that refusal to withdraw prosecution, already launched; unless a bound for the amount due is executed would not be coercion.

    (b) Act forbidden by the penal code
    In dealing with a case of coercion the Court should decide, whether the alleged act of coercion amounts to an offence under the penal code.

    (c) Undue Influence
    A distinction must be drawn between mere influence and undue influence. An advice, argument, persuasion or solicitation cannot short of controlling a person’s free exercise of his will. A persuasion of leaves a person free to adopt his own course, is not undue influence. Overall a recommendation or an entreaty from some person, held in regard, could be dealt with as undue influence. Without verification that an person has been, in consequence of the charged influence, denied of free org no inquiry of there being any undue influence arises.

    (d) Coercion and fraud
    The acts of undue influence must range themselves under either coercion or fraud. Undue influence consists in some coercion almost amounting to fraud, whereby the will of one party is dominated by the other, so that the resulting transacting cannot be regarded as expressing the real intention of the party coerced.
    (e) Position of Dominate
    When undue influence is alleged, it is necessary to show that the relations between the parties to a transaction were such that the beneficiary was in a position to dominate the will of the executants and further that he had exercised his influence to obtain unfair advantage over the other. The question whether a party was in a position to dominate the will of the other is largely a question of fact.

    (4) undue Influence

    A distinction must be drawn between mere influence and undue influence. An advice, argument, persuasion or solicitation cannot constitute undue influence. Fair mediation indeed earnestness, misses the mark regarding controlling person’s free exercise of his will. A persuasion of leaves a person free to adopt his own particular course, is not undue influence. Overall a proposal or an entreaty from some person, held in regard, could be dealt with as undue influence. Without confirmation that a person has been, in consequence of the charged influence, denied of free org no inquiry of there being any undue influence arises.

    (5) Coercion and Fraud

    The acts of undue influence must range themselves under either coercion or fraud. Undue influence consists in some coercion almost amounting to fraud, whereby the will of one party is dominated by the other, so the subsequent exchange can't be regarded as expressing the real intention of the party coerced.

    (6) Fraud

    Fraud means “ An intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right; a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury”.

    (7) Misrepresentation


    Any representation, which not correct, though innocent and not intentional would amount to misrepresentation. But such innocent misrepresentation does not cause the avoiding of a contract unless it is made without reasonable ground. The contract may be avoided only where a person induced another, by making a representation which was not true and which was not warranted by any information he had at the time.
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    Item Reviewed: Consent and Concept of free consent Rating: 5 Reviewed By: Usman Ali
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