Defect in consent

1. Defect in consent Wrong information Threat Lesion

2. Defect In Consent Two persons are said to have consented when they agree upon same thing in the same sense.When there is no consent at all, the agreement is void – ab – initio’. It is not enforceable at the option of either party Consent is said to be free when it is not caused by either wrong information (mistake, false statement, fraud) or threat (duress, reverential fear, threat to exercise rights) or lesion.

3. Mistake art.119-123 when a party makes misunderstanding on the content of the contract or on the identity of the other contracting party. The person might have committed such misunderstanding either because of his own poor inference from given facts or false statement or deceitful practice of other person.Two conditions: 1. mistake must be fundamental: mistake is fundamental when it related to the object or nature of a contract or identity of the contracting parties2. the mistake must be decisive: the mistake is decisive when the mistaken party proves that a rational person in his position would not have entered into such contract had it not been for the mistake

4. Fraud Art.124-125 Fraud is an intentional act of preparing false information or changing or modifying the content of the subject matter of the contract in a manner that cannot be noticeable by ordinary observation.The fraudulent should prove: • the fraud led him to commit decisive error • the fraud was committed by the party to the contract or he knew or should haveknown the fraud or derived undue benefit.

5. False statement Art.124(2) False statement is like fraud, but some further explanation on the silence of the contracting party. A) there is a special relationship between the liar contracting party and the mistakenparty. Here the special relation should be a legally recognized relation which creates duty to trust one another.B) Such special relation ship led the mistaken party to believe the statements of theother party.

6. Duress Art.126 Duress is warning the party that unless he enters into a certain contract certain harm will be done to him. One can raise duress as a cause of invalidation of contract if the following conditions are cumulatively fulfilled: • There is a threat or warning to cause harm. • The harm is on the person himself, spouses or his ascendant or descendants. • The harm is on person, life, property, and honor.

7. Duress cont.….. 4. The party believes that the harm will happen if he does not consent to the contract. 5. The threat should be serious 6. The harm is imminent 7. The threat must impress a reasonable person A Threat to Exercise a Right:this is when some one has a right and uses it to obtain a proprietary interest in excess of what he deserves. However; the threat may be directed against the person from whom the threatening person does not have any right.

8. Reverential fear this is a psychological threat. The threatening person is playing against the psychological (mental) feeling of the threatened person. It is a psychological intimidation that if the person does not give his consent to be bound by the contract he will be belittled by some one or the public in general. It is in short the fear of opinions.The reverential fear must make the person to lose certain advantages i.e. his bargaining power was reduced; he was not free to bargain properly so that the other contracting party get excessive advantage from the contract.

9. Lesion Art.127 Inequality in the contract: The injury suffered by one who does not receive a full equivalent for what he gives in a commutative contractParties are bargaining at arms length. This presupposes that both parties to a contract are equal. However, such equality may be affected by individual want, simplicity and business inexperience thereby giving the other party the opportunity to exploit such weakness.

10. Questions??? Comments!!!