Consent

Free Consent

Consent:
Section 13: “Consent” defined – Two or more persons are said to consent when they agree
upon same thing in the same sense.

Section 14:- “Free Consent” defined - Consent is said to be free when it is not caused by

1) Coercion , as defined in Section 15, or

2) Undue Influence, as defined in Section 16, or
3) Fraud, as defined in Section 17, or
4) Misrepresentation, as defined in Section 18, or
5) Mistake, subject to the provisions of Sections 20, 21 and 22.
Consent is said to be so caused when it would not have been given but for the existence of such
coercion, undue influence, fraud, misrepresentation or mistake.

Consent (Section 13)

Section 13: “Consent” defined – Two or more persons are said to consent when they agree
upon same thing in the same sense.

Same thing in the same sense – Consensus ad idem.

Deo Nandan vs. Chhote, AIR 1983 All 9

 A comparative study of the language used in Section 10,13, and 14 leads to two
inescapable conclusions:
1) To constitute a contract, both the parties must consent to the agreement;

2) Even if both the parties have consented, the consent of one of the parties may not be
free if obtained by coercion, undue influence, etc.

 The distinction between a total lack of consent and a tainted consent is, therefore, real
and must always be kept in mind.

 It is only in those cases where the tainted consent has been obtained or procured from
one of the parties that the contract at his instance would be voidable and may be set
aside.

P. Prabhakara Rao vs. P. Krishna, AIR 2007 AP 163

In an ejectment suit filed by the landlord, the tenant pleaded that the landlord had orally agreed
to transfer the premises to him. There was not only ambiguity, but also contradiction as to the
extent and nature of property, which was said to be the subject matter of oral agreement. The
sale consideration was said to have been during the period of four years, which was also not
found reliable. The defendant failed to prove consensus ad litem. The theory of oral agreement
for sale was rejected.
Medical Negligence- Patient’s Consent for operation

Samira Kohli vs. Dr. Prabha Manchanda and Anr. AIR 2008 SC 1385

As she was admitted only for a diagnostic procedure, namely a laparoscopy test, and as she
had given consent only for a laparoscopy test and as her mothers consent for conducting
hysterectomy had been obtained by misrepresentation, there was no valid consent for the
radical surgery. The respondent also tried to cover up her unwarranted/negligent act by
falsely alleging that the appellant was suffering from endometriosis. The respondent was
guilty of two distinct acts of negligence: the first was the failure to take her consent, much
less an informed consent, for the radical surgery involving removal of reproductive organs;
and the second was the failure to exhaust conservative treatment before resorting to radical
surgery, particularly when such drastic irreversible surgical procedure was not warranted
in her case. The respondent did not inform the appellant, of the possible risks, side effects
and complications associated with such surgery, before undertaking the surgical procedure.
Such surgery without her consent was also in violation of medical Rules and ethics.
Removal of her reproductive organs also resulted in a severe physical impairment, and
necessitated prolonged further treatment.

It held that sterilization could not be justified under the principle of necessity, as there was
no immediate threat or danger to the patient's health or life and it would not have been
unreasonable to postpone the operation to secure the patient's consent. The fact that the
doctor found it convenient to perform the sterilization operation without consent as the
patient was already under general anaesthetic, was held to be not a valid defence.

The basic principle in regard to patient's consent may be traced to the following classic
statement by Justice Cardozo in Schoendorff vs. Society of New York Hospital - (1914)
211 NY 125 :

'Every human being of adult years and sound mind has a right to determine what should be
done with his body; and a surgeon who performs the operation without his patient's consent,
commits an assault for which he is liable in damages."

the exception to the rule

Marshell vs. Curry - 1933 (3) DLR 260
The decision in Marshell vs. Curry - 1933 (3) DLR 260 decided by the Supreme Court of
NS, Canada, illustrates the exception to the rule, that an unauthorized procedure may be
justified if the patient's medical condition brooks no delay and warrants immediate action
without waiting for the patient to regain consciousness and take a decision for himself. In
that case the doctor discovered a grossly diseased testicle while performing a hernia
operation. As the doctor considered it to be gangrenous, posing a threat to patient's life and
health, the doctor removed it without consent, as a part of the hernia operation. An action
for battery was brought on the ground that the consent was for a hernia operation and
removal of testicle was not consent. The claim was dismissed. The court was of the view
that the doctor can act without the consent of the patient where it is necessary to save the
life or preserve the health of the patient. Thus, the principle of necessity by which the doctor
is permitted to perform further or additional procedure (unauthorized) is restricted to cases
where the patient is temporarily incompetent (being unconscious), to permit the procedure
delaying of which would be unreasonable because of the imminent danger to the life or
health of the patient.

Smith v Hughes (1870) LR 6 QB 597

Contract – Mistake – Breach of Contract – buyer beware – Caveat Emptor

Facts

The complainant, Mr Smith, was a farmer and the defendant, Mr Hughes, was a
racehorse trainer. Mr Smith brought Mr Hughes a sample of his oats and as a
consequence of what he had seen, Mr Hughes ordered 40-50 quarters of oats from
Mr Smith, at a price of 34 shillings per quarter. To begin with, 16 quarters of oats
were sent to Mr Hughes. When they arrived, he said that the oats were not what he
had thought they were. As he was a racehorse trainer and he needed old oats, as this
was what the horses had for their diet. The oats that were sent to Mr Hughes were
green oats, the same type as the initial sample. Mr Hughes refused to pay Mr Smith
for the delivery and remaining order.

Issues

Mr Smith argued that Mr Hughes had breached the contract as he had not paid for
the delivery and future oats to be delivered. The issue in this case was whether the
contract could be avoided by Mr Hughes, as Mr Smith had not delivered the type of
oats he had expected.

Held

It was held that there was a contract between Mr Smith and Mr Hughes and that it
would not be avoided. There had been no discussion between the parties regarding
the delivery of old oats. An objective test revealed that a reasonable person would
expect the sale of good quality oats in a similar contract, since there was no express
discussion of old oats. The sample gave him the chance to inspect the oats and this
was an example of caveat emptor (buyer beware).

Section 20: Agreement void where both parties are under mistake as to matter of fact-
Where both the parties to an agreement are under a mistake as to a matter of fact essential to
the agreement, the agreement is void.
Explanation – An erroneous opinion as to the value of the thing which forms fact essential to
the agreement, the agreement is void.

Section 21: Effect of mistakes as to law - A contract is not voidable because it was caused
by a mistake as to any law in force in India; but a mistake as to a law not in force in India has
the same effect as a mistake of fact.

Section 22: Contract caused by mistake of one party as to matter of fact – A contract is
not voidable merely because it was caused by one of the parties to it being under a mistake as
to matter of fact.

Section 15 Coercion:

Acts Forbidden by Indian Penal Code

Askari Mirza v. Bibi Jai Kishori ( 1912) 16 IC 344

a minor having borrowed on two mortgage deeds, agreed to compromise although the mortgage
were avoid. subsequently he pleaded that he entered into the compromise because he was
threatened with prosecution for falsely misrepresenting his age and that this amounted to
coercion. it was held that the law in Section 15 is much wider than anything to be followed in
English authority and in India it is not correct to say that a contract is vitiated merely by a threat
to bring a criminal charge.

Amiraju V Chikham Seshamma ( ILR (1918) 41 Mad 33, 36

by threat of suicide, a Hindu induced his wife and son to execute release in favour of his brother
in respect of certain properties which they claimed in as their own. it was held by majority "
that the threat of suicide amounted to Coercion and the release deed was therefore voidable".

Kishan Lal Kalra v NDMC, AIR 2001

the plea was the plaintiff was dispossessed of promises forcibly under threat that he would be
arrested and detained under the Maintenance of Internal Security Act. The Court said that
such threats fall within the mischief of Section 15.

Andhra Sugars Limited v. State of A.P (1968)

 Under the Andhra Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1961, and the
rules framed under it, the cane growers in the factory zone is free to make or not to make an
offer of sale of cane to the occupier of the factory. But if he makes an offer, the occupier of the
factory is bound to accept it. It was claimed that the agreement was caused by coercion. The
Supreme Court ruled:
the consent of the occupier of the factory to the agreement is not caused by coercion undue
influence fraud misrepresentation or mistake his consent is free as defined in section 14 of
Indian Contract Act though he is obliged by law to enter into the agreement. the compulsion of
law is not coercion as defined in Section 15 of the Act. in spite of the composition the
agreement is neither void nor voidable, in the eye of law the agreement is freely made.

S.S. Sakhar Karkhana Limited v. C.I.T Kolhapur.

under the co-operative laws, co-operative of Maharashtra compulsory to deposit from its farmer
members. the supreme court noted on the argument between the Cooperative and its members:
the mere fact that contact has to be entered into conformity with and subject to restrictions
imposed by Law does not per se impinge on the consensual element in contract. compulsion of
law is not coercion and despite search compulsion, In the eye of law, the agreement is freely
made.
Section 16:

Henry Williams and Others v James Bayley (1866) L.R. 1 H.L. 200

Facts:

Bayley’s son took promissory notes to a bank, which he had forged in his father’s name and
without his father’s knowledge. The notes were fraudulent. Bayley’s son had done this several
times and gotten away with it. On one occasion, the bank called into question the promissory
note as it dishonored. The son redeemed it but Bayley did not catch on as to the reason why the
note had dishonored, so the son continued. When the forgery was discovered, the son did not
deny it. The bank decided to propose that Bayley mortgage his house to pay them back in order
to avoid his son’s prosecution. Bayley obliged, but later brought a cause of action over the
validity of the agreement with the bank.

Issues:

The issue was whether the agreement between the bank and the father was valid, given it was
formed as an alternative to prosecution of the fraudster son.

Held:

The agreement to mortgage the property was invalid. The agreement was only entered into to
prevent his son’s criminal prosecution and therefore, the agreement could not be enforceable
in equity. Bayley was in a desperate position and was without fault. Thus, he formed an
agreement on illegitimate terms, in that his son could avoid prosecution for his criminal act of
fraud. The bank had accepted against ethics, justice and morality. This was held to be a grave
departure from what an agreement should be, without pressure.
Mannu Singh v Umadat Pande, ILR (1888-90) 12 ALL 523

a spiritual adviser (guru), induced the plaintiff, his devotee, to gift to him the whole of his
property to secure benefits to his soul in the next world. Such a consent is said to be obtained
by undue influence.

Rannee Annapurni Vs. Swami Natha, (1910) 34 Mad. 7,

a poor Hindu widow who was in great need of money to establish her right to maintenance,
was persuaded by a moneylender to agree to pay 100 per cent rate of interest. This is a clear
instance of undue influence being exerted upon a person in distress, and the court reduced the
interest to 24 percent.

Unconscionable Bargains

Wajid Khan v Raja Ewaz Ali Khan (1890-91)

An old and illiterate woman, incapable of any business, conferred on her confidential
managing agent, without any valuable consideration, an important pecuniary benefit under the
guise of a trust. Their Lordships said that “all the facts of the case go to show that there was
active undue influence.

Inche Noriah Binte Mohd Tahir v Sk Allie (1929)

An old Malay Widow, Wholly illiterate, was the owner of considerable rent-producing landed
property. She gifted all her property to her nephew who as helping her, leaving for her an
income only of about 30 dollars. The deed of gift was prepared with the help of a lawyer.
Under these circumstance which gave rise to the presumption must be set aside unless the done
is able to satisfy the court of the facts sufficient to rebut the presumption.

Tungabai Bhratar Purushottom Shamji Kumbhojkav v Yeshvant Dinkar Jog (1945)

A woman, was was described as a submissive wife and who at the bidding of her husband,
gave security of her stridhan (Personal Property), which comprised some land, to secure the
growing indebtedness of her husband.
Lord Goddard expressed the opinion that “ it is unnecessary to enter into a discussion as to the
burden of proof in such a case as this as the evidence here abundantly justifies a presumption
that she was acting under the influence of her husband for whose benefit the mortgage was
being executed.

Universe Tankships Inc v. International Transport Workers Federation (1983)

All the shipping company to recover back from the Workers Federation 80,000 US Dollars
which were paid under an agreement and which agreement the shipping company had to
execute because the workers did not permit the ship to leave without signature. It amounted to
economic duress and upon the ship owners. The conduct was so catastrophic as to amount to
coercion of the shipowner’s will which vitiated their consent to those agreements and payments
made by them.

Exploitation of Needy

Schroeder Music Publishing Co. vs Macaulay (1974)

There was an agreement between a young songwriter and a music publishing company. The
arrangement was to remain in force for 5 years and was to be automatically extended for
another five years should the boy’s royalty reach the figure of 5000 pounds. The company
could terminate the agreement at any time by a month’s notice. The boy had no such right and
he wanted to get out of it.
The House of Lords ordered his liberation form the bond. The Contract was on the terms of
company’s standard terms and was therefore, the result of the company’s dictation.

Section 18

Mohan Lai Vs. Shri Gangaji Cotton Mills Co., 4 C.W.N. 369,
A learns from X that B would be director of a company to be formed. A says to M : “B is going
to be a director of the Co.”, in order to induce him to purchase shares. M does so. This is
misrepresentation by A, though he believed in the truth of the statement and there was no intent
to deceive, as the information was derived not from B, but from X, and was mere hearsay.
Belief under S. 18(1) must not only be reasonable, but also must be derived from the best
possible source.

Currie Vs. Rennick, 1886 Pun. Rec. No. 41 —

In this case, A wants to buy B’s mare. B writes, “I think your queries would be satisfactorily
answered by a friend if you have one in the station, and I shall feel more satisfied. All I can say
is that the mare is thoroughly sound.” This letter is a “positive assertion” of soundness, coupled
with a recommendation to B to satisfy himself before purchasing.

The Oceanic Steam Navigation Co. Vs. Sunderdas Dhurmsey (1890) 14 Bom. 241 —
The defendants in Bombay chartered a ship wholly unknown to them from the plaintiffs,
which was described in the charterparty and was represented to them, as being not more than
2,800 tonnage register. It turned out that the registered tonnage was 3,045 tons. The
defendants refused to accept the ship in fulfilment of the charterparty, and it was held that
they were entitled to do so, by reason of the erroneous statement as to tonnage.

Johnson Vs. Crewe (1874) 5 N.W.P. 350 —

On A’s representing innocently, that there is a motorable road between X and Y, B, having
business at Y, agrees to deliver a boiler to A at X. In fact, there is a suspension bridge
between the two places, which cannot bear the weight of the boiler, though A did not know of
this fact. The agreement is voidable at the instance of B, as A’s statement amounts to
misrepresentation under clause C to S. 18.

Thake Vs. Maurice, (1986) 1 All. —

In this case, a, husband undergoing vasectomy operation was not warned that there was a
slight risk of his wife becoming pregenent, the surgeon was held responsible to the man and
his wife for the pains of unwanted pregnancy. It was held that the plaintiffs were entitled to
damages for distress, pain and sufferings.

Oriental Banking Corporation Vs. Fleming (1879) 3 Bom. —

In this case, the plaintiff having no time to read the contents of a deed signed it as he was
told by the defendant that it contained nothing but formal matters already settled between
them. The deed, however, contained a release in favour of the defendant. Although the
defendant was under no obligation, legally or morally, to communicate the contents of the
deed, but since the plaintiff placed confidence, it then became his duty to state fully without
concealment, all that was essential to the knowledge of the contents of a document. It was
held that the deed was voidable.