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Consent occurs when one person voluntarily agrees to the proposal or desires of another.[1] It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships.
Free Consent is absolutely essential to make an agreement a valid contract. The importance of free consent cannot be stressed enough. Consent of the parties to the contract must be free and voluntarily. Consent to the contract has to be given without any kind of pressure or delusions.
Types of consent include implied consent, expressed consent, informed consent and unanimous consent. Consent as understood in specific contexts may differ from its everyday meaning. For example, a person with a mental disorder, a low mental age, or under the legal age of sexual consent may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law. United Nations agencies and initiatives in sex education programs believe that teaching the topic of consent as part of a comprehensive sexuality education is beneficial.[2]
For a contract to be valid, it is necessary that the parties provide free consent to be terms. If the contract were not with free consent, the contract would be voidable by the other party whose consent was not taken or was not free. Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Types of consent include implied consent, expressed consent, informed consent and unanimous consent. For a contract to be valid, it is necessary that the parties provide free consent to be terms. If the contract were not with free consent, the contract would be voidable by the other party whose consent was not taken or was not free.
- 6Sexual activity
Types[edit]
- An express consent is one that is clearly and unmistakably stated, rather than implied. It may be given in writing, by speech (orally), or non-verbally, e.g. by a clear gesture such as a nod. Non-written express consent not evidenced by witnesses or an audio or video recording may be disputed if a party denies that it was given.
- Implied consent is consent inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). Some examples include implied consent to follow rules and/or regulations at an education institution and the implied consent to physical contact by participants in a hockey game or assault in a boxing match.
- Informed consent in medicine is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action. The term is also used in other contexts, such as in social scientific research, when participants are asked to affirm that they understand the research procedure and consent to it.
- Unanimous consent, or general consent, by a group of several parties (e.g., an association) is consent given by all parties.
- Substituted consent, or the substituted judgment doctrine, allows a decision maker to attempt to establish the decision an incompetent person would have made if he or she were competent.[3]
Tort[edit]
Consent can be either expressed or implied. For example, participation in a contact sport usually implies consent to a degree of contact with other participants, implicitly agreed and often defined by the rules of the sport.[4] Another specific example is where a boxer cannot complain of being punched on the nose by an opponent; implied consent will be valid where the violence is ordinarily and reasonably to be contemplated as incidental to the sport in question.[5] Express consent exists when there is oral or written agreement, particularly in a contract. For example, businesses may require that persons sign a waiver (called a liability waiver) acknowledging and accepting the hazards of an activity. This proves express consent, and prevents the person from filing a tort lawsuit for unauthorised actions.[citation needed]
In English law, the principle of volenti non fit injuria applies not only to participants in sport, but also to spectators and to any others who willingly engage in activities where there is a risk of injury. Consent has also been used as a defense in cases involving accidental deaths during sex, which occur during sexual bondage. Time (May 23, 1988) referred to this latter example, as the 'rough-sex defense'. It is not effective in English law in cases of serious injury or death.
As a term of jurisprudence prior provision of consent signifies a possible defence (an excuse or justification) against civil or criminal liability. Defendants who use this defense are arguing that they should not be held liable for a tort or a crime, since the actions in question took place with the plaintiff or 'victim's' prior consent and permission.[citation needed]
Medicine[edit]
In medical law, consent is important to protect a medical practitioner from liability for harm to a patient arising from a procedure. There are exemptions, such as when the patient is unable to give consent.[3]
Also, a medical practitioner must explain the significant risks of a procedure or medication (those that might change the patient's mind about whether or not to proceed with the treatment) before the patient can give a binding consent. This was explored in Australia in Rogers v Whitaker.[6] If a practitioner does not explain a material risk that subsequently eventuates, then that is considered negligent.[7] These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure.[8]In the UK, a Supreme Court judgment[9] modernized the law on consent and introduced a patient-focused test to UK law: allowing the patient rather than the medical professionals to decide upon the level of risk they wish to take in terms of a particular course of action, given all the information available. This change reflects the Guidance of the General Medical Council on the requirement to consent patients, and removes the rule of medical paternalism.[10]
Social science research[edit]
Social scientists are generally required to obtain informed consent from research participants before asking interview questions or conducting an experiment. Federal law governs social science research that involves human subjects, and tasks institutional review boards (IRBs) at universities, federal or state agencies, and tribal organizations to oversee social science research that involves human subjects and to make decisions about whether or not informed consent is necessary for a social scientific study to go forward. Informed consent in this context generally means explaining the study's purpose to research participants and obtaining a signed or verbal affirmation that the study participants understand the procedures to be used and to consent to participate in the study.[11]:51–55
Some types of social scientific research, such as psychological experiments, may use deception as part of the study; in these cases, researchers may not fully describe the procedures to participants, and thus participants are not fully informed. However, researchers are required to debrief participants immediately after the experiment is concluded. Certain populations are considered to be vulnerable, and in addition to informed consent, special protections must be made available to them. These include persons who are incarcerated, pregnant women, persons with disabilities, and persons who have a mental disability. Children are considered unable to provide informed consent.[11]:51–55
Planning law[edit]
Some countries, such as New Zealand with its Resource Management Act and its Building Act, use the term 'consent' for the legal process that provide planning permission for developments like subdivisions, bridges or buildings. Achieving permission results in getting 'Resource consent' or 'Building consent'.
Sexual activity[edit]
In Canada 'consent means… the voluntary agreement of the complainant to engage in sexual activity' without abuse or exploitation of 'trust, power or authority', coercion or threats.[12] Consent can also be revoked at any moment.[13][better source needed]
Sexual consent plays an important role in defining what sexual assault is, since sexual activity without consent by all parties is considered rape.[14][15][better source needed] In the late 1980s, academic Lois Pineau argued that we must move towards a more communicative model of sexuality so that consent becomes more explicit and clear, objective and layered, with a more comprehensive model than 'no means no' or 'yes means yes'.[16] Many universities have instituted campaigns about consent. Creative campaigns with attention-grabbing slogans and images that market consent can be effective tools to raise awareness of campus sexual assault and related issues.[17]
Since the late 1990s, new models of sexual consent have been proposed. Specifically, the development of 'yes means yes' and affirmative models, such as Hall's definition: 'the voluntary approval of what is done or proposed by another; permission; agreement in opinion or sentiment.'[13] Hickman and Muehlenhard state that consent should be 'free verbal or nonverbal communication of a feeling of willingness' to engage in sexual activity.'[18] Affirmative consent may still be limited since the underlying, individual circumstances surrounding the consent cannot always be acknowledged in the 'yes means yes', or in the 'no means no', model.[14]
Some individuals are unable to give consent. Children or minors below a certain age, the age of sexual consent in that jurisdiction, are deemed not able to give valid consent by law to sexual acts. Likewise, persons with Alzheimer's disease or similar disabilities may be unable to give legal consent to sexual relations even with their spouse.[19]
Within literature,[vague] definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus.[14][15] Roffee argued that legal definition needs to be universal, so as to avoid confusion in legal decisions. He also demonstrated how the moral notion of consent does not always align with the legal concept. For example, some adult siblings or other family members may voluntarily enter into a relationship, however the legal system still deems this as incestual, and therefore a crime.[20] Roffee argues that the use of particular language in the legislation regarding these familial sexual activities manipulates the reader to view it as immoral and criminal, even if all parties are consenting.[21] Similarly, some children under the legal age of consent may knowingly and willingly choose to be in a sexual relationship. However the law does not view this as legitimate. Whilst there is a necessity for an age of consent, it does not allow for varying levels of awareness and maturity. Here it can be seen how a moral and a legal understanding do not always align.[22]
Initiatives in sex education programs are working towards including and foregrounding topics of and discussions of sexual consent, in primary, high school and college Sex Ed curricula. In the UK, the Personal Social Health and Economic Education Association (PSHEA) is working to produce and introduce Sex Ed lesson plans in British schools that include lessons on 'consensual sexual relationships,' 'the meaning and importance of consent' as well as 'rape myths'.[23] In U.S., California-Berkeley University has implemented affirmative and continual consent in education and in the school's policies.[24] In Canada, the Ontario government has introduced a revised Sex Ed curriculum to Toronto schools, including new discussions of sex and affirmative consent, healthy relationships and communication.[25] Many universities have instituted campaigns about consent. Creative campaigns with attention-grabbing slogans and images that market consent can be effective tools to raise awareness of campus sexual assault and related issues.[17]
![Free Free](/uploads/1/2/4/8/124813439/829378796.jpg)
Affirmative consent[edit]
Affirmative consent (enthusiastic yes) is when both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures.[26] It involves communication and the active participation of people involved. This is the approach endorsed by colleges and universities in the U.S.,[27] which describe consent as an 'affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.' According to Yoon-Hendricks, a staff writer for Sex, Etc., 'Instead of saying 'no means no,' 'yes means yes' looks at sex as a positive thing.' Ongoing consent is sought at all levels of sexual intimacy regardless of the parties' relationship, prior sexual history or current activity ('Grinding on the dance floor is not consent for further sexual activity,' a university policy reads).[26] By definition, affirmative consent cannot be given if a person is intoxicated, unconscious or asleep.
There are 3 pillars often included in the description of sexual consent, or 'the way we let others know what we're up for, be it a good-night kiss or the moments leading up to sex.'
They are:
- Knowing exactly what and how much I'm agreeing to
- Expressing my intent to participate
- Deciding freely and voluntarily to participate[26]
To obtain affirmative consent, rather than waiting to say or for a partner to say 'no', one gives and seeks an explicit 'yes'. This can come in the form of a smile, a nod or a verbal yes, as long as it's unambiguous, enthusiastic and ongoing. 'There's varying language, but the language gets to the core of people having to communicate their affirmation to participate in sexual behavior,' said Denice Labertew of the California Coalition Against Sexual Assault.[26] 'It requires a fundamental shift in how we think about sexual assault. It's requiring us to say women and men should be mutually agreeing and actively participating in sexual behavior.'[26]
See also[edit]
Wikiquote has quotations related to: Consent |
- Sociocracy (decision-making by consent)
References[edit]
- ^'Home : Oxford English Dictionary'. www.oed.com. Retrieved 2016-03-24.
- ^International technical guidance on sexuality education: An evidence-informed approach(PDF). Paris: UNESCO. 2018. p. 56. ISBN978-92-3-100259-5.
- ^ abGarner, Bryan (2011). Black's Law Dictionary. West Publishing Co. p. 726.
- ^Example of permitted and regulated contact in sport - BBC Sport: Rugby Union: '... you can tackle an opponent in order to get the ball, as long as you stay within the rules.'
- ^Pallante v Stadiums Pty Ltd (No 1)[1976] VicRp 29, [1976] VR 331 at 339, Supreme Court (Vic, Australia).
- ^Rogers v Whitaker[1992] HCA 58, (1992) 175 CLR 479, High Court (Australia).
- ^Chester v Afshar[2004] UKHL 41, [2005] 1 AC 134, House of Lords (UK).
- ^Chappel v Hart[1998] HCA 55, (1998) 195 CLR 232, High Court (Australia).
- ^Montgomery v Lanarkshire Health Board[2015] UKSC 11, [2015] AC 1430, Supreme Court (UK).
- ^'Supreme Court decision changes doctor-patient relationship forever - Balfour+Manson'. www.balfour-manson.co.uk.
- ^ abChambliss, Daniel F.; Schutt, Russell K. (2016). Making sense of the social world: methods of investigation (Fifth ed.). Los Angeles: Sage. ISBN9781483380612. OCLC890179806.
- ^Criminal Code, Canadian (2015). 'Canadian Criminal Code'.Cite journal requires
|journal=
(help) Retrieved March 13, 2015. - ^ abHall, David S. (10 August 1998). 'Consent for Sexual Behavior in a College Student Population'. Electronic Journal of Human Sexuality. 1.
- ^ abcRoffee, James A. (2015). 'When Yes Actually Means Yes'. Roffee James A., 'When Yes Actually Means Yes: Confusing Messages and Criminalising Consent' in Rape Justice: Beyond the Criminal Law eds. Powell A., Henry N., and Flynn A., Palgrave, 2015. pp. 72–91. doi:10.1057/9781137476159_5. ISBN978-1-349-57052-2.
- ^ abBeres. A, Melanie (18 January 2007). ''Spontaneous' Sexual Consent: An Analysis of Sexual Consent Literature'. Feminism & Psychology. 17 (93): 93. doi:10.1177/0959353507072914.
- ^Pineau, Lois (1989). 'Date Rape: A Feminist Analysis'. Law and Philosophy. 8 (217).
- ^ abThomas KA, Sorenson SB, Joshi M. 'Consent is good, joyous, sexy': A banner campaign to market consent to college students. Journal of American College Health. 2016; 64(8):639-650
- ^Hickman, S.E. and Muehlenhard, C.L. (1999) 'By the Semi-mystical Appearance of a Condom': How Young Women and Men Communicate Sexual Consent in Heterosexual Situations', The Journal of Sex Research 36: 258–72.
- ^Pam Belluck (April 22, 2015). 'Iowa Man Found Not Guilty of Sexually Abusing Wife With Alzheimer's'. The New York Times. Retrieved April 23, 2015.
- ^Roffee, J. A. (2014). 'No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights'. Human Rights Law Review. 14 (3): 541–572. doi:10.1093/hrlr/ngu023.
- ^Roffee, James A. (2014). 'The Synthetic Necessary Truth Behind New Labour's Criminalisation of Incest'. Social & Legal Studies. 23: 113–130. doi:10.1177/0964663913502068.
- ^Roffee, James A. (2015). 'When Yes Actually Means Yes'. Roffee, James (2015). When Yes Actually Means Yes in Rape Justice. 72 - 91. doi:10.1057/9781137476159.0009. ISBN9781137476159.
- ^Rawlinson, Kevin (9 March 2015). 'Plans for sexual consent lessons in schools 'do not go far enough''.Cite journal requires
|journal=
(help) Retrieved March 13, 2015. - ^Grinberg, E. (29 September 2014). 'Enthusiastic yes in sex consent education'.Cite journal requires
|journal=
(help) Retrieved March 13, 2015. - ^Rushowy, Kristin (25 February 2015). 'In Ontario sex ed, consent the hot issue'.Cite journal requires
|journal=
(help) Retrieved March 10, 2015. - ^ abcdeGrinberg, E. (29 September 2014). 'Enthusiastic yes in sex consent education'.Cite journal requires
|journal=
(help) Retrieved March 10, 2015. - ^'...affirmative consent standards have been adopted at colleges across the nation, including every ivy league university except Harvard. 'Affirmative consent: A primer' Christine Emba Washington Post Oct 12 2015 https://www.washingtonpost.com/news/in-theory/wp/2015/10/12/affirmative-consent-a-primer/
Retrieved from 'https://en.wikipedia.org/w/index.php?title=Consent&oldid=916760820'
FREE CONSENT
- Meaning of consent: it means an act of assenting to an offer.According to section 13, 'Tow or more persons are said to consentwhen they agree upon the same thing in the same thing in samesense.' Thus, consent involves identity of minds in respect of thesubject matter of the contract. In English Law, this is called'consensus-ad-idem'.
- Effect of Absence of consent:
When there is no consent at all, the agreement is voidab-initio, i.e. it is not enforceable at the option of eitherparty. Example: X has one Maruti car and one fiat car. Hewants to sell fiat car. Y does not know that X has two cars. Yoffers to buy X's Maruti car Rs 50,000. X accepts the offerthinking it to be an offer for his Fiat car. Here, there is noidentity of mind in respect of the subject of the subject matter.Hence there is no consent at all and the agreement is voidab-initio.
- Meaning of Free consent: It is one of the essential elements ofa valid contract as it is evidenced by section 10 which providesthat all agreements are contracts if they are made by the freeconsent of the parties... according to section 14, consent is saidto be free when it is not caused by (a) Coercion, or (b)Undueinfluence, or (c) Fraud, or (d) Misrepresentation, or (e)Mistake.
- Effect of Absence of free consent:
When there is consent but it is not free (i.e. when it is causedby coercion or undue influence or fraud or misrepresentation), thecontract is usually voidable at the option of the party whoseconsent was so caused.
- COERCION
Meaning of coercion[section 15]: It means compelling a person toenter into a contract, by use of physical force/activitiesforbidden by Indian penal code, OR
threatens to do activities forbidden by I.P.C, OR
threatens to damages the property.
Effect of coercion: Voidable and can be canceled at the optionof aggrieved party. OR A 'suicide and a 'threat to commit suicide'are not punishable but an attempt to commit suicide is punishableunder the Indian penal code.
X threatens to kill Y if he does not sell his house for Rs.1,00,000 to X. Y sells his house to X and receives the payments.Here, V's consent has been obtained by coercion. Hence, thiscontract is voidable at the option of Y. If Y decides to avoid thecontract, he will have to return Rs 1,00,000 which he had receivedfrom X.
'Y' (aggrieved party) will return Rs. 1,00,000
'X' (defendant party) will return the house and any benefit fromthe goods.
When voidable contract cannot be canceled:
When the third party become interested into a voidable contract.E.g. A obtain the car of B through coercion. Let, A sold it to 'C'an innocent buyer, now B cannot get the contract canceled.
When the aggrieved party ratify/confirm/affirm then contract cannot be cancel.
2. UNDUE INFLUENCE:
Meaning of Undue influence[section 16(1)]: The term 'undueinfluence' means dominating the will of the other person to obtainan unfair advantage over the other. According to section 16(1), acontract is said to be induced by undue influence
- where the relations subsisting between the parties are suchthat one of them is in a position to dominate the will of theother, and
- the dominant party uses that position to obtain an unfairadvantage over the other.
When two-partner are in relation, and one of them is dominantand other is in weaker position and dominant person takesundue-Advantage, then it is called'Undue- influence.'
No presumption of domination of will
According to judicial decisions held in various cases, there isno presumption of undue influence in the followingrelationships:
- Husband and wife
- landlord and tenant
- Creditor and debtor
Effect of undue influence [section 19A]: when consent to anagreement is caused by undue influence, the agreement is a contractvoidable at the option of the party whose consent was socaused.
Comparison between coercion and undue influence:
Similarities: In case of both coercion and undueinfluence, the consent is not free and the contract is voidable atthe option of the aggrieved party.
3. FRAUD
Meaning and essential elements of fraud [section 17] : The term'fraud' means a false representation of fact made willfully with aview to deceive the other party. Fraud includes following:
- Wrong suggestion about a fact, knowing that it isnot-true;
E.g. X sells to Y locally manufactured goods as imported goodscharging a higher price, it amounts to fraud. OR A seller claimedthat his projector is made in Singapore, and sold it for Rs.100,000/- However the fact is that 'Projector was made in southIndia'.
- Active concealment (Hide) of defect in goods:
![Law Law](/uploads/1/2/4/8/124813439/235962347.jpg)
E.g. 'A car-painter, uses paint to hide the scratches over theold furniture and sold it claiming that is Now'. This is fraud. ORX a furniture dealer, conceals the cracks in furniture sold by himby using some packing material and polishing it in such a way thatthe buyer even after reasonable examination can not trace thedefect, it would tent amount to fraud through activeconcealment.
- Promise made without intention to perform:
E.g. 'A man and a woman underwent a ceremony of marriage withthe husband not regarding it as a real marriage. Held, the husbandhad no intention to perform the promise from the time he made itand hence the consent of the wife was obtained under fraud. OR 'Afarmer agrees to supply 100kg potato that will be produced by himout of his field, after three month'. Two months has been lapsed,but the farmer neither implant seeds, nor does cultivation. This iscase of fraud.
- Any activity declared fraud as per other law; under companiesact and insolvency acts, certain kinds of transfers have beendeclared to be fraudulent.
Note: In case of fraud, the seller is always liable even thoughbuyer has an opportunity to check the fraud.
- Any activity fitted (supported) to deceive. It covers thoseacts which deceive but are not covered under any other clause.
Effect of Fraud[section-19]
The effects of fraud are as follows:
Free Consent
(a) The party whose consent was caused by fraud can rescind(cancel) the contract but he cannot do so in the followingcases:
- Where silence amounts to fraud, the aggrieved party cannotrescind the contract if he had the means of discovering the truthwith ordinary diligence;
- Where the party gave the consent in ignorance of fraud;
- Where the party after becoming aware of the fraud takes abenefit under the contract;
- Where an innocent third party before the contract is rescindedacquires for consideration some interest in the property passingunder the contract.
- Where the parties cannot be restored to their originalposition.
(b) The party whose consent was caused by fraud may, if hethinks fit, insist that the contract shall be performed and that heshall be put in the position in which he would have been if therepresentation made had been true.
- The party whose consent was caused by fraud, can claim damageif he suffers some loss.
Weather silence is fraud?Comment:
General concept: According to explanation to section 17, 'Meresilence as to facts likely to affect the willingness of a person toenter into a contract is not fraud'.
In other words, Silence is not fraud. It is buyer, who mustcheck the goods & suitability.
E.g. X purchased a used computer from Z thinking it as acomputer imported from USA, Z failed to disclose the fact to X. Onknowing the fact X wants to repudiate the contract. So, here Xcannot repudiate/rescind/cancel the contract.
Exceptions to the general rule:
The general rule that silence does not amount to fraud has thefollowing exceptions. Where the circumstances of the case are suchthat, regard being had to them, it is the duty of the personkeeping silence to speak. Such duty arises in the following twocases:
- When silence is equivalent to speech: E.g. 'A student of BBAselect a Business law-book and asks the seller'. If seller don'tstop me from buying this book, I will assume that 'it is best'. Theseller remained silent here the student will treat 'silence' asspeech. If the book was inferior, then it is a case of fraud.
- Disclosure of dangerous nature: E.g. Shyam sold his horse toRam a buyer for Rs. 11000/- Shyam knows that horse was 'wicked' butfails to disclose it to buyer. Here seller has committed fraud byremaining silent.
4. Misrepresentation
The term 'misrepresentation' means a false representation offact made innocently or non-disclosure of a material fact withoutany intention to deceive the other party. Section 18 defines theterm 'misrepresentation' as follows
'Misrepresentation' means and includes-
- The positive assertion, in a manner not warranted by theinformation of the person making it, of that which is not true,though he believes it to be true;
- Any breach of duly which, without an intent to deceive, gainsan advantage to the person committing it, or anyone claiming underhim, by misleading an other to his prejudice or to the prejudice ofanyone claiming under him;
- Causing, however innocently, a party to an agreement, to make amistake as to the substance of the thing which is the subject ofthe agreement.
Essential elements of misrepresentation:
- By a party to a contract: The representation must be made by aparty to a contract or by anyone with his connivance or by hisagent. Thus, the misrepresentation by a stranger to the contractdoes not affect the validity of the contract.
- False representation: There must be a false representation andit must be made without the knowledge of its falsehood i.e. theperson making it must honestly even it is to be true.
- Representation as to fact: The representation must relate to afact. In other words, a mere opinion, a statement of expression orintention does not amount to misrepresentation.
'Innocent misstatement made into good faith OR without anyintention to cause loss'
E.g. A farmer says that his land is very productive and produces100 quintal per acre. This is misrepresentation and buyer cancancel the contract.
Note: When the buyer has an opportunity to check themisrepresentation, but he fails then buyer cannot cancel thecontract.
E.g. An owner of factory, while selling his factory, express hisopinion as my factory produces 1000 kg per ann-um and requested thebuyer to find out exact production by checking 'production-record'.If the buyer fails to check the production record then buyer cannotblame seller.
Effect of misrepresentation[section 19]
The effects of misrepresentation are as follows:
- Right to rescind the contract The party whose consentwas caused by misrepresentation can rescind (cancel) the contractbut he cannot do so in the following cases:
- where the party whose consent was caused by misrepresentationhad the means of discovering the truth with ordinarydiligence;
- where the party gave the consent in ignorance ofmisrepresentation;
- where the party after becoming aware of the misrepresentation,takes a benefit under the contract;
- where an innocent third party, before the contract isrescinded, acquires for consideration some interest in the propertypassing under the contract;
- where the parties cannot be restored to their originalposition.
(b) Right to insist upon performance The party whoseconsent was caused by misrepresentation may if he thinks fit,insist that the contract shall be performed, and that he shall beput in the position in which he would have been if therepresentation made had been true.
Comparison between fraud and misrepresentation
Similarities: There are basically two similarities in case offraud and misrepresentation as follows:
- In both the cases, a false representation is made by aparty;
- In both the cases, the contract is voidable at the option ofthe party whose consent is obtained by fraud ormisrepresentation.
5. Mistake
Meaning of mistake [section 20]
A mistake is said to have occurred where the parties intendingto do one thing by error do something else. Mistake is 'erroneousbelief' concerning something.
Free Consent In Mercantile Law
Classification of Mistake of Law:
(a) Mistake of Indian Law(In sense of penalty): The contract isnot voidable because everyone is supposed to know the law of hiscountry. e.g. disobeying traffic rules'
(b) Mistake of Foreign Law(void-ab-initio): A mistake of foreignlaw is treated as mistake of fact, i.e. the contract is void ifboth the parties are under a mistake as to a foreign law becauseone cannot be expected to know the law of other country.
Free Consent Law Teacher
Mistake of fact
Mistake of fact be either Unilateral mistake orBilateral mistake.
Unilateral mistake [section 22]: The term 'unilateral mistake'means where only one party to the agreement is under a mistake.According to section 22, 'A contract is not voidable merely becauseit was caused by one of the parties to it being under a mistake asto matter of fact.'
Bilateral mistake [section 22]: The term 'bilateral mistake'means where both the parties to the agreement are under a mistake.According to section 20, 'where both the parties to an agreementare under a mistake as to a matter of fact essential to theagreement, the agreement is void.' thus, the following threeconditions must be satisfied before declaring a contract void underthis section:
- Both the parties must be under a mistake
- Mistake must be of fact but not of law.
According to explanation to section 20. 'An erroneous opinion asto the value of the thing which forms the subject matter ofagreement is not to be deemed a mistake as to a matter offact.'
Note: Mistake about price is valid.
What is free consent in business law?
Free Consent Law
According to contract law free consent means the situation where by among the parties who enter into a contact are to be able and willing to engage in contract
What has the author Scott Mann written?
Scott Mann has written: 'Economics, business ethics and law' -- subject(s): Business ethics, Business law, Economics, Free enterprise, Law and ethics, Moral and ethical aspects, Moral and ethical aspects of Economics, Moral and ethical aspects of Free enterprise, Social responsibility of business, Commercial law
The implied consent law states that?
Implied consent is not a law. Implied consent is a legal concept that means that although you did give actual consent, such as signing a document, you appeared to give your ok by other actions.
Where can you download chameleon circuit free?
Technically there is no legal way to download their Album free, as it is against the law to download music without the artist's consent. I'd just buy the album.
Is there a way to get around the age of consent law?
What is the age of consent for Mo?
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William Everett Britton has written: 'Cases on business law' -- subject(s): Cases, Commercial law 'Cases on the law of bills and notes' -- subject(s): Negotiable instruments, Cases
What has the author Marianne Jennings written?
Marianne Jennings has written: 'Foundations of the legal environment of business' -- subject- s -: Business law, Commercial law 'Business' -- subject- s -: Business ethics, Business law, Commercial law 'The New York Times Guide to Business Law and Legal Environment' 'Business ethics' -- subject- s -: Business ethics, Case studies 'A Business Tale' -- subject- s -: Miscellanea, Business ethics, Choice - Psychology -, Success in business 'Business' -- subject- s -: Business law…
The Georgia Implied Consent Law means that?
Georgia's implied consent law, you are agreeing to chemical testing when you driving a motor vehicle. The implied consent law basically means that if you are driving you are 'consenting' to DUI testing upon being suspected of DUI.
Why can't you watch Aladdin the movie free?
International copywrite law prevents unauthorised transmission of any intellectual property without written consent - this consent is rarely provided without royalties being paid to the owner of the property.
What is meaning of business law?
Do I break any Georgia law if I consent to my 16 year old son getting a tattoo in Alabama?
It is not against the law for you to consent in Alabama. It is against the law for anyone to tattoo someone under the age of 18 in Georgia. You can't consent to an illegal act.
What are some of the key concepts in business law?
Can a minor drive a minor with the parents consent?
Only within the limitations of state law. If state law prohibits it, then parental consent makes no difference.
What is the law about the age of consent in the state of Texas?
The age of consent in Texas currently stands at 17.