Mouprise.com

Free consent and contracts

Contracts are agreements between parties that are backed by law and therefore can be enforced through the courts. The term “agreement” necessarily means that the parties hereto agree to the agreement mentioned therein. Not only must the consent of the parties be present, but it is also essential to ensure that such consent is qualified by the free will of the party. The consent that is given by free will is known as ‘Free Consent’ and is one of the essential elements for the contract to be enforceable. The contract is null or voidable if you lack free consent.

According to the Dubai Contracts Act 1971 (hereinafter referred to as “the law”), consent is said to be free only when the following factors are absent:

I. Coercion
II. illegal influence
third Fraud
IV. Temptation
V.Error

This article will deal with the five aforementioned factors that prevent the free will of the parties in a contract in accordance with the law.

COERSION

The law defines coercion as the act of committing, or threatening to commit, any act classified as a crime by the Penal Code or seizing or threatening to seize any property unlawfully, in order to cause harm to any person. anyone for the purpose of getting anyone to make an agreement.

Thus, coercion is an act of forcing a person to enter into an agreement by threatening that a criminal act will be committed against that person if the person does not agree to enter into the agreement. Therefore, cases where one of the parties is forced to enter into the agreement by threatening her life, or to hurt her or her loved ones in any way or cause any damage to the goods or property of said party, are cases that fall under duress. . Example: If one of the parties is forced to enter into a contract to sell her house under the threat that her son would be kidnapped if the same is not done.

In such cases, the agreement is revocable at the request of the party whose consent is obtained under duress.

ILLEGAL INFLUENCE

The concept of unlawful influence is similar to the concept of ‘undue influence’ under the common law. Unlawful influence is said to have occurred when the relationship between the parties places either party in a position to control the will of the other party and uses that position to gain unfair advantage at the other party’s expense.

The law also provides tests to determine whether a person is in a position to influence another. A person is said to be in a position of influence if he meets one of the following two conditions:

I. If said person has real or apparent authority over the other party or is obliged to be honest with the other party;
II. If said person contracts with another person whose mental capacities are affected, temporarily or permanently, by age, illness or physical or mental pain.

Thus, a teacher is said to be in a position of control over his student, the employer is said to be in a position of control over his employee, the doctor is said to be in a position of control over his patient, a lawyer is said to be in a position of control with respect to his clients, etc.

In the event of an allegation or suspicion of the existence of illegal or undue influence, the burden of proof against the existence of illegal influence falls on the person who is in the position of control.
Said agreements are revocable at the request of the party that had acted under illegal influence.

FRAUD

Fraud refers to cases where one of the parties receives misleading and false information and that party enters into the agreement based on such false and misleading information.

The law has provided us with certain cases whose existence creates a presumption of fraud. The following are cases that lead to fraud:

I. The inaccuracy given as true by a person knowing that it is false or without caring, due to indiscretion, if the statement is true or not;
II. Failure to disclose a fact by someone who knows or is likely to know such a fact;
third A promise given without any intention to be kept at the time of giving it;
IV. Any other act whose object is fraud.
V. Any act or omission especially considered as fraud by law.

When it can be presumed that the silence about a fact is equal to the non-existence of the fact and the existence of such a fact plays a decisive role in the conclusion of the agreement, there is a duty by law to disclose such facts and non-disclosure results in fraud.

The party under the influence of the fraud can revoke the agreement and therefore the agreement is voidable by such party and not voided ab-initio.

TEMPTATION

According to the law, the term temptation used in it includes the following cases:

1. Confirming something that is not true by a person who believes it to be true. These are cases where one person believes a false fact to be true and the other party, instead of correcting the person as to the falseness of the fact, supports the person’s belief and thus misleads the person.

2. Breach of duty without intent to deceive, ensuring a benefit to the defaulting party or to any person who intends to act on their behalf, by tempting another person in such a way as to cause harm to the latter or to any person who intends to act on their behalf. your name. act on her behalf.

3. Make, even in good faith, that one of the parties to the contract does not understand the essence of the object of the contract. In this case, one of the parties to the contract knowingly misleads the other party as to the object of the contract and, therefore, whether it is done in good faith or not is irrelevant.

In all of the aforementioned cases of enticement, the party whose consent is obtained through enticement may revoke the agreement and the agreement is voidable at the discretion of such party.

MISTAKE

The errors can be of two types, there can be an error of fact or an error of law. The factual error that is a consummated material fact results in the nullity of the agreement. The fait accompli in the contract must be material, the term ‘material’ denotes that said fact plays a decisive role for the party to enter into the agreement and the party would have entered into said agreement had it not been for the error of such fact. The material may also indicate that such fact materially affects the rights and obligations of the parties under such agreement. Likewise, the contract is not rendered void by its execution due to an error on the part of any of the parties regarding a fait accompli. It is essential that the fait accompli thus confused be material.

In addition, the law establishes that the mere error in the appreciation of the value of a thing or the value of the object of the contract is not considered an error in the fait accompli and, therefore, does not produce the nullity of the contract.

The other type of error is the error of law. Here the error or error regarding an applicable law makes the contract void ab-initio and the error regarding a law that is not applicable is judged on the same bases as the factual error.