The meaning of the term
consent according to Webster’s II New College Dictionary is “voluntary
allowance of what is planned or done by another”[1].The
dictionary further defines voluntary as “arising from ones own free will” [2].
Firstly.the definition
raises questions like the meaning of autonomous choices before the decision
counts as a consent?.Secondly, what does “voluntary” mean if the necessary
information to make the decision is not there? .In order to what has been
identified as “informed consent” which means the consent that reflects an
individual’s free will certain conditions have to be fulfilled .
In Indian contract act,
Section 10 defines free consent an essential requirement of a contract. Section
14 of Indian contract act says that consent is said to be free when it is not
caused by coercion, undue influence, fraud, misrepresentation and mistake. The
contract becomes voidable at the option of the party whose consent was so caused.
Here coercion may be referred to as when
a person threatens another person in order to gain consent.Undue influence is
unlawful control by one person over another in order to obtain compliance.The
wilfull misrepresentation or concealment of material facts of a contract
leading to persuasion of a party to enter a contract leads to a fraud .Misrepresentation
of certain facts pertaining to a
material matter on which one party relied leads to a void contract .A mistake
leading to a significant change in the subject matter of the contract leads to
a void contract.But clerical errors or mistakes in computation leading to an
error in judgement will not lead to a void contract.
Currently consent
centric approach to contract has led to problems despite courts enforcing them
.Which again questions the existence of a truly voluntary consent?. Contract
laws have relied on consent to justify its choices with one party over another
.Courts rely on observable evidences to ascertain whether parties consented to
it or not .The courts in order to ascertain the existence of consent has
adopted certain objective approaches to help them in their task as the
consenters mind cannot be read.Under this objective approach it is seen whether
a reasonable man looking at the disclosure would have understood the intent to
be[3] .The reason behind the objectivity is to
protect certainity in contracts and other party’s reliance on the promosors’s
disclosure[4].
The objective approach
helps in two different ways first certainity in a contract and secondly
predictability of contract.It leads to certainity in contracts as the parties
can rely on contractual agreements .It encourages individual responsibility as
one has to think carefully before signing a contract since one will be held
responsible for ones actions .However due to its importance on outward
disclosure it may lead to consent even though there was no meaningful
consent.Market manipulation of information has led to consent without any
meaningful consent[5]
.
Contract law’s focus on
the consent based approach has frequently led to enforcing agreements without
meaningful consent .The concept of consent can be easily manipulated ,which
leads to its complexity .The signature on a written document cannot be presumed
to reflect the will when the other party has manipulated the
information.Marketplace manipulation targeting human biases is strongly
reflected in todays times.
Traditional concept of
consent based approach is not feasible in todays situation where there is an
increasing use of standard form of contracts and cyberspace contracts .Current
Contract law defences with its consent centric approach has been unable to
solve the fundamental problems of power imbalance helps .Current contract law
defences helps in sustaining this imbalance.
Todays cyberspace
transactions where a user has to just click on “Ok” button to adhere to the
agreement without reading the terms indicating acceptance of the terms .In this
scenario it is difficult to understand whether informed consent exists or not.
The consent based approach has clearly come into conflict with practises that
don’t seem consensual [6].
But cyberspace
contracts are here to stay[7].If
a court is true to the consent based approach it has to strike down the cyberspace
contracts due to the lack of consent.This would lead to large number of cyber
space contracts not to be upheld .Cyberspace commerce which relies on this
contracts would not be able to progress.
Todays contract law
defenses are partly able to address the defects of consent based approach.Consent
is detrimental to Contract law goals as identified by various scholars which
are reducing opportunistic behaviour,reducing transactional costs and promoting efficient exchanges[8] .But
consent based approach actually increases the opportunistic behaviour.Till the
time the parties know that a contract can be enforced as long as the other
party signs the contract ,parties are motivated to manipulate the information to
gain consent.
Increased transactional
causes may also occur due to lack on trust between people where multiple
contingencies have to be provided .It happened to after the subprime mortgage
in USA where contractual parties sued each other.
Contract law’s goal of efficiency is seriously undermined by the consent based approach as
enforceability of contracts without informed decision making leading to problems.
Thus consent centric
approach is unfair on people who are in not a good position to help themselves
,well informed or endowed with resources and not much educated specially in
India.So there should be an alternative to a consent centric approach.
A totality of
circumstances test based approach may be very useful and flexible than consent
based approach .Intead of trying to ascertain whether individual consented or
not it is better to examine the multiple circumstances surrounding the entire
transaction before enforcing a
contract.This has been applied in multiple circumstances by the court also utilizing
its strength in fact finding.
Courts have often used
the totality of circumstances in issues of criminal law where consent of the
accused is in question.But the question here is can the totality of
circumstances test work in contract law .The answer is simple instead of
searching for the validity of an inviduals consent the court will look into
multiple factors to determine whether a contract is enforceable or not .In
short consent will become a factor for analysis.for example whether a
reasonable man would have consented to the contract if he had understood the
terms of the contract under the given circumstances.Whether the terms of the
contract were reasonable?.It is a very logical and honest test helping in
finding the legitimacy of the contract in question.
One of the goals of
contract law is to reduce exploitation.The consent centric approach opposes
this goals which further increases the perception that government is helping
and giving undue advantage to the rich and powerful.
Another approach from
consent centric approach may be no retraction principle.Normally in contract
law a parties willingness to enter an agreement can freely retract till the
other party has not accepted the terms offered free without any cost . Under no
retraction principle retraction is not
free most importantly when the other party relied on the proposal .The offeror
who revokes the offer has to reimburse the offeree certain amount incurred
after the offer was made.Under this principle the negotiating partners have greater
security incase someone walk out of it .Also helps in increasing the trust
level between the negotiating parties.Also helps in avoding concurrent bids
from multiple parties.
Lastly ,under
non-retraction rule non-conforming communications like counter offers or concurrent proposals
do not cancel out instead are baselines for other each party that sets for the
other part to accept[9] .Leading
to a contionous process in essence and justifying a converging liability
regime.Thus for example a counter offer is not deemed as a rejection but as a
basis for a reverse option.
Thus the consent
centric approach suffers from too many disadvantages in todays world as
economic relationships have become complex and there is much manipulation in
the market. Consent has become very elusive and difficult to define therefore
consent centric approach no longer serves the purpose .If consent based
approach is continued exploitation of less powerful parties will continue in an
economic relationship which will only further the notion that government and
law in India are for the rich and powerful. In simple terms those who can
afford it.
[1] Webster’s
II New College Dictionary 245 (3d edition 2005).
[2] Id
at 1267.
[3]
Mautner,Supra note 4, at 551
[4]
Perillo , Supra note 67, at 442-43
[5]
Radin, supra note 10 , at 1128
[6]
Radin, Supra note 10, at 1128
[7]
ProCD,86 F.3d at 1451
[8]
TREBILCOCK,Supra note 7,at 16-17
[9]
CONTRACTS WITHOUT CONSENT ,OMRI BEN SAHAR,VOL 52 ,PAGE -1870
