Statement: Free consent is not present when there is a bilateral mistake a fact at the

time of execution of contract. Comment

INTRODUCTION Free consent and the bilateral mistake both have different treatments in the law.

Contract act 1872 treats both things under different clauses. Both the things are

discussed clearly in contract law and the execution of the consequences is clearly

stated. The statement under the law is discussed below:

FREE CONSENTAccording to section (14) of the contract act 1872

Consent is said to be free when it is not caused by-

(1) Coercion, as defined in section 15, or

(2) Undue influence, as defined in section 16,or

(3) Fraud, as defined in section 17, or

(4) Misrepresentation, as defined in section 18, or

(5) Mistake, subject to the provisions of sections 20, 21 and 22.

Sec 19 0f the contract act 1872 regards any act in which consent of any party is not free

as voidable. Such type of contracts may be challenges in court

BILATERAL MISTAKEBilateral mistake is one in which both the contracting parties are at mistake about the

same material thing/fact within the contract. It is obvious that when both the parties

commit any mistake the consent of either party will not be free because the subject

matter or the fact to the contract is not acceptable to any of the party. The contract act

regards any such type of contract as void

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According to section (20) 0f the contract act (1872)

Agreement void where both parties are under mistake as to matter of fact

Where both the parties to an agreement are under a mistake as to a matter of fact

essential to the agreement, the agreement is void.

Section 21 and section 22 of consumer laws and contract act are also related to this

which are as under

Section 21:

A contract is not voidable because it was caused by a

mistake as to any law in force in Pakistan; but a mistake

as to a law not in force in Pakistan has the same effect as

a mistake of fact.

Section 22:

A contract is not voidable merely because it was caused

by one of the parties to it being under a mistake as a

matter of fact.

COMMENTIn the light of above mentioned laws of contract act and the consumer act a contract

becomes voidable when there is the element of absence of free consent and the

aggrieved party may challenge such contract in the court. But in the statement we may

see that there is the element of bilateral mistake. In such a case where there is a

mistake the contract becomes void. And when we talk about bilateral mistake it is

treated under sec 20 which says it as a void contract. Mistake at the time of execution of

contract does not take any party as liable to that nor enforceable. No one is held liable

for that mistake and the contract may not be challenged in the court.

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Free consent is required to make a contract enforceable, now if the consent will not be

free the contracting parties will face some problems. Consensus ad idem (complete

meeting of minds) is very essential part of any contract, when both parties are not

getting on any same point then the contract is void but it also depends upon the nature

of mistake. If the mistake is of minor nature that does not go to the heart of the contract,

then the contract becomes voidable because the interest of either party is not exploited

and the vilification may be settled easily but in the case where the mistake is of primary

nature, the mistake that changes the soul of contract and that is material to the contract

then the contract becomes void. So in such case of the bilateral mistake the nature of

the mistake matters a lot.

In the case of a void contract the consent of parties may not be free and the contract

law does not regard and such law enforceable that does not contain free consent. In

such case both the contracting parties must make new contract and must clarify each

and every clause because when a mistake is made by both the contracting parties at

the time of the execution of the contract it is not the fault of either of the parties so no

one could be held liable for that.

CONCLUSIONWhen there is a bilateral mistake at the time of execution of contract between the

contracting parties the consent of the parties may not be free there for the contract

could not be enforced. The court does not regard any law enforceable if the consent is

not free or if there is any mistake in the contract.

The problem arises when one of the contracting parties tries to take the unfair

advantage of the mistake. In such a case the aggrieved party may go to court and seek

remedy. If the nature of the mistake does not go to the heart of the contract the contract

is enforceable but if the mistake that is made by both parties is material to the contract

then court declares such contract as void and such contract may not then be challenged

in the court. In such condition both the parties need to sign a fresh contract with

consensus ad idem. Court see the nature of mistake and the interest of parties. So on

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the basis of nature of mistake and the consent of parties the decision is taken. The

nature of mistake plays vital role in this regard. It is the nature of mistake that may

declare the contract as void or the voidable. No matter what type of problem occur law

is wide enough to cover it.

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