Understanding Proposals, Consent, and Free Consent in Contracts

1. Proposal

When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal. (Section 2(a))

a. Promise

The word 'promise' in the act is used in a narrow sense to mean an accepted proposal. It is not the same thing as an agreement, which is defined under clause (e). The technical use of the word 'promise' in the Court Act is far narrower than the popular use. Express words of promise often are in law no narrower than a proposal. A proposal is merely an offer to be bound by a promise, and a promise in law is an accepted proposal. It is the promise only which can give rise to an agreement which, if enforceable by law, is a contract, but if not, is a void agreement.

2. Agreement

Every promise and every set of promises, forming the consideration for each other, is an agreement. (Section 2 (e))

1. Consent

Definition of Consent

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

(a) Nature of Consent

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

2. Free Consent

Consent is not free when it is 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)

4. Undue Influence

A distinction must be drawn between mere influence and undue influence. Advice, argument, persuasion, or solicitation cannot constitute undue influence. Fair mediation, indeed earnestness, misses the mark regarding controlling a person’s free exercise of his will. A persuasion that leaves a person free to adopt his own particular course is not undue influence. Overall, a proposal or an entreaty from someone 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 will, 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 cannot be regarded as expressing the real intention of the coerced party.

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 is 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.