Free consent in law of Contracts in Tanzania.

FREE CONSENT

INTRODUCTION

During this lecture you will be taught about the requirement of free consent as one of the essential ingredients for an agreement to be a contract. 

1. THE ESSENCE OF FREE CONSENT

Free consent is a concept associated with freedom of contract.  It owes its origins in the capitalist era during which freedom of contract and sanctity of contract were very crucial elements in concluding contracts.

Free consent meant that a person must conclude a contract on his own free will or volition and should have the freedom to determine contractual relationship.

The concept of free consent embodies three principles, namely;

a) freedom of movement

b) freedom of will, and

c) equality between the contracting parties.  

Let us examine each of the three principles in turns.

1.1 Freedom of Movement

In order to understand clearly the principle of freedom of movement, you need to go a little back into history.  You need to understand the kind of relations which pre-existed the principle in order to know the mischief which the principle of freedom of movement sought to cure.

As pointed earlier, the concept of free consent arose during the capitalist era.  Preceding the capitalist era was the era of feudalism.

During the feudal era labour was tied up to the feudal lords.  Serfs were considered as property. Thus, status of the person was paramount.  A serf could not leave the employ of his master on his own accord.  Therefore, the labour force provided by the serfs was inexorably tied up to the feudal lords.

The ushering in of capitalism necessitated that the labour force be untied from the feudal bonds.  The emergent industrialists and commercialists needed a free labour market.  That is, a free mobility of the labour power i.e. the serfs.  This could not be achieved if relations based on status under the feudal system continued to subsist.

The institution of contract, as you have already learnt from your introduction lectures, facilitated the change from status to contract.  It did away with status.

In order to release the labour power from the feudal bonds it was argued that people should be free to enter into employment contracts.  This was not possible earlier because once a person was born a serf he or she became the property of the feudal lord.  As such the person had no choice of employers or otherwise.  Under the institution of contract the labour force i.e. the serfs were free or able to choose and change their employers.  Likewise, the employers were to be free to hire and fire provided the terms of the contract allowed.  It meant, therefore, that the relations between persons were to be governed by contractual terms.  Hence, freedom of movement.

1.2 Freedom of will (Volition) 

Free will is also a requisite that arose to sustain the capitalist epoch.  Not only were persons to enjoy freedom of movement in order to ensure the mobility of labour, but also should be free to enter into contracts, bargain terms of contract, make and unmake contracts.  With the principle of volition a worker was free to change employment and the employer was free to hire and fire.  Free will meant, therefore, that a person could exercise his or her mind freely and without being fettered or interfered with in deciding on entering into a contractual relationship.

1.3 Equality

The underlying ideal as regards equality between the contracting parties is that, the parties who decide to engage in a contractual relationship enjoy equal bargaining positions.  None is in a position to dictate contractual terms upon the other.  That the process of negotiating the terms of a contract does not give one party a better bargaining position, or it does not submerge the other to a position whereby he or she can be unduly influenced or coerced to accepting the terms of a contract.  Equality of the parties complements to freedom of movement and volition and consolidates the concept of free consent.

A contract which was concluded by the free consent of the parties, unless it was contrary to law or public policy, was sacrosanct.

Later developments in capitalism, particularly the coming into the scene of huge business enterprises such as monopolies and cartels greatly affected the concept of freedom of contract.  With monopolies developed the standard form contracts which are not strictly based on free consent.  Rather, contractual relationships developed independent of men's will.  Nevertheless, the concept of free consent has remained one of the basic requisites for an agreement to be enforceable i.e. a contract.

Under the Law of Contract Ordinance, section 10 embodies the requirement that for an agreement to be a contract it must, inter alia, be made by the free consent of the parties.

2. DEFINITION OF FREE CONSENT

Section 13 of the Law of Contract Ordinance provides that two or more persons are said to consent when they agree on the same thing in the same sense.  In Latin such meeting of the mind is called consensus ad idem.

For example, where A places an order over the phone to B for the supply of cotton, but B hears that he should supply kapok, the two are not at consensus ad idem.  They have not agreed on the same thing in the same sense.

The term "free consent" is not tautological or verbose, because consent need not necessarily be free.  At times there may be consent but it is vitiated and hence not free.

Section 14 of the Law of Contract Ordinance provides that, consent is said to be free when it is not caused by the following factors:

a) coercion

b) undue influence

c) fraud

d) misrepresentation

e) mistake

The law defines all these factors as we shall discuss in lecture 7.