l 7 - free co. kgaa sustai

7/25/2019 L 7 - Free Co. KGaA Sustai

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FREE CONSENT


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LEARNING OUTCOME

To analyse

the situations underwhich the consent is notfree


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Consent Defned:

When two or more persons agree uponthe same thing in the same sense, they are

said to consent. (consensus ad idem)

ORAn act of assenting to an oer

Case :

Bala dei ! "!Ma#umda$(deed o% &i%t to ne'e* &ien to

mana&e lands)


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+$ee Consent

According to section 14,

Consent is said to be free when it isnot caused by:

Coercion

ndue !n"uence

#raud

$isrepresentation

$ista%e


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(I) Coe$cion(%ea$, '-sical com'ulsion, menace to

&oods)(i) Committin& o$ t$eatenin& to commit an- act%o$.idden .- Indian /enal Code

Case : Ran&ana-a0amma ! Ala$ "ett- (1223)

(-oun& &i$l* ado'tion)

(ii) te unla%ul detainin&, o$ t$eatenin& to detain,an- '$o'e$t-

Case : Mutta ! Mutu 4a$a''a

(a&ent detained .oo0s o% accounts)


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E5ect o% Coe$cion (Section 19):

Agreement is oida.le at the option ofthe aggrie&ed party.

A person to whom money has been paid,

or anything deli&ered under coercion must

$e'a- o$ $etu$n it.

E6am'le :

railway company'illegal charge toconsignee


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Coe$cion ma- .e di$ected a&ainst

an-.od-:

E6am'le:

A threatens to %ill ( )C*s son+ if C doesnot let out his house to A.

!s this agreement is caused by coercion.


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(II) Undue in7uence :

A contract is said to be induced by undue in"uence* where the relationssubsisting between the parties are such that one of the parties is in a

'osition to dominate te ill o% te ote$ and uses that position to

obtain an unfair ad&antage o&er the other.

Undue in7uence en '$esumed:

(a)Real o$ a''a$ent auto$it-

(maste$*se$ant, docto$ 8'atient)

(.) +iducia$- $elationsi' (case : Mannu sin& ! Umadat /ande-)

(%ate$*son, solicito$*client)

(c) Mental Dist$ess9 mental ca'acit- a5ected .- a&e, illness etc!(e!&A&ed 'atient*oe$ca$&ed)

(medical attendant*'atient)

)


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E5ect o% Undue In7uence :

Agreement is &oidable at the option of the

aggrie&ed party.

Cou$t may set aside the case

or

Im'lementit in the modi-ed form)e.g bond of s.1// signed for s.0//+

To return the bene-t if contract is set aside


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02/07/16


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You just execute a gift

deed of your whole

property to me and Illoperate you


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Case: Mood- ! Co6

A solicitor sold one of his property toone of his clients. The client

subseuently alleged that theproperty was considerably

o&er&alued and his consent was

caused by undue in"uence.

!s it so2222


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Case: Ranee Anna'u$ni !"aminata

A poor 3indu widow who was in direneed of money , was forced by

money lender to agree to pay 1//rate of interest.


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Coe$cion ! UndueIn7uence

Coe$cion

Commit or threat tocommit an oence

5hysical in character)fear, physicalin"uence, menace togoods+

!ntention to cause aperson to enter in anagreement.

Criminal act

Undue In7uence

6ne dominates theposition of another

$oralin"uence7character

in"uence used toobtain unfair

ad&antage of theanother.

8o criminal act


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Re'$esentation

A statement of fact which one partyma%es in the course of negotiations with a&iew to inducing the other party to enterinto a contract is $e'$esentation;!

It can .e :

)a+ !nnocent

)b+ !ntentional


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(III) Mis$e'$esentation

!t is a false statement which theperson ma%ing it honestly belie&es it

to be true

OR

Which he doesn*t %now to be false

e.g. nsound mare


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+o$ mis$e'$esentation to e6ist te$e

must .e:

)a+ A false representation of a fact

)b+ $isrepresentation made without the

%nowledge of its falsity

)c+ $isrepresentation made without theintention of cheating the other party

)d+ The misrepresentation must ha&ebeen acted upon by the parties.


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Te $e'$esentation must $elate tomate$ial %act

Bisset s


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3eld there was no misrepresentationas the statement was one of opinionwhich was honestly held.


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Conse=uences o%Mis$e'$esentation

)1+$ay a&oid or rescind the contract.

)0+ $ay a9rm the contract and insistupon the misrepresentation beingmade good.


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+RAUD

Section 17

02/07/16


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(I>) +$aud

+$aud means and includes an- o% te %olloin& actsdone it an intent to deceie o$ to induce a'e$son to ente$ into a cont$act:

(i)An- %alse su&&estion o$ statement(ii) Actie concealment o% %act .- one ain&

0noled&e o$ .elie% o% te %act(iii) A '$omise made itout an- intention o%

'e$%o$min& it!(i) An- suc act o$ omission as te la s'eciall-

decla$es to .e %$audulent!

(e!& 'la-in& it fnancial $eco$ds)


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222

A sells by auction, to ( , a horse whichA %nows to be unsound. A says nothingto ( about horse*s unsoundness. !s it a

fraud 22 ( is A*s daughter and has ust come of

age. !s is a fraud now 2

( says to A , ;!f you do not deny it, !shall assume that the horse is sound.+ Claim for damages


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MI"TA4E

(i) Mista0e o% La:

)a+ $ista%e of law of country

)b+ $ista%e of law of a foreign country

(ii) Mista0e o% +act:

)a+ (ilateral mista%e

)b+ nilateral mista%e


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(A)Bilate$al Mista0e: Cont$act is oid

Two conditions:

)i+$ista%e should be mutual)ii+$ust relate to matter of fact essential

to an agreement

Note : .ut e$$oneous o'inion a.outsometin& is not a mista0e (e!&'aintin& )


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Cases o% .ilate$al mista0e (.e.$ie%)

(A)Mista0e as to te e6istence o%su.#ect*matte$

e!& dead o$se


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(B) Mista0e as to identit- o% tesu.#ect*matte$

e!& ?en0el !/a'e ca$&o o% cotton to a$$ie e6*

'ee$less %$om Bom.a-


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(C) Mista0e as to title to tesu.#ect*matte$

e!G lease oned al$ead-


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(D) Mista0e as to =uantit- o%

su.#ect*matte$


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(E) Mista0e as to =ualit- o% te

su.#ect*matte$

?@ample:

A and ( entered into the contract fortop'class uality basmati rice butmista%en together for the uality.

The contract was held to be &oid.


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(B) Mista0e as to te 'ossi.ilit- o%

'e$%o$mance o% cont$act

)i+5hysical impossibility )procession of

%ing+)ii+ egal impossibility


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@! Unilate$al mista0e: Contract isnot &oid


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@! Unilate$al mista0e:

(case is oid)

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