The consent relates to the understanding of the contract by the parties. It is regarded as an important element of the contract only to assure that the parties understand the contract they are giving assent to and legally bind themselves. It ensures that they show their will without any pressure, duress, threat, mistake, fraud, or any other misrepresentation. The court can impose the contractual obligations to be fulfilled by the parties only in legally binding contracts. Therefore, the court decides whether the consent was voluntary and genuine or given under circumstances that would render the invalid consent. The consent should be free and should voluntarily be given.
The offeror must give his/her consent to engage into a legally binding contract with good faith and should also be willingly accepted. The offeror has the right to revoke the offer at any time before the acceptance of the offer. The onus of proving the presence of these elements has relied on the aggrieved party before the court. They must act in good faith and signed the contract willingly.
Types of Consent
There are two types of consent, i.e., express consent and implied consent in contracts. The express consent is expressed specifically through oral or written words or any other form of the willingness to enter into a contract. The express consent is generally given in legally binding written contracts or oral contracts. However, the implied consent is not expressed through any oral or written words. Instead, it is determined by the partie’s actions and the facts of each case. In some cases, the absence of the refusal to the contract is assumed as the silent consent to the contract, and hence the parties will be liable to perform the contractual obligations.
The consent must be freely given without any duress, undue influence, mistake, misrepresentations, or fraud. Duress comprises any actions of threat or actual violence or confinement of any of the parties to the contract, or their family members, or any other acts of creating pressure or threats on the lives of relatives or contracting parties. It must be directed towards the contracting party and committed by the other contracting party or his direction or orders.
In terms of undue influence, the concept of pressure and compulsion on the party by using the authority of higher standing or status against the other party may be used to compel him to give consent to the contract or unreasonably favor any party concerning the contract. The contracts should not be made with fraudulent intention to deceive the opposite party, thereby committing the fraud. However, to prove the fraud, the agreement should be in writing and signed by the parties. When contracting parties are under the mistake of fact which is relevant to the contract, then the contract is rendered void. However, the mistake includes only material facts, not the mistake of law.
The doctrine of good faith is also applicable to the contracts in the US. It implies that the contract must be signed between the parties in good faith without any ill intentions to deceive the other party by misrepresenting any fact or concealing any important fact related to the contract. All the contracts under duress, undue influence, fraud, or not signed in good faith are voidable at the option of the aggrieved party. However, in case of mistake of fact by both the parties, the contract is declared to be void.
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