Compilation On Consent

MANU/TN/0181/1917
Equivalent Citation: (1918)ILR 41Mad33, 40Ind. C as.352
IN THE HIGH COURT OF MADRAS

Decided On: 23.02.1917
Appellants: Chikkam Seshamma and Ors.
Vs.
Respondent: Chikkam Ammiraju and Ors.
Hon'ble Judges/Coram:
John Edward Power Wallis, Kt., C.J., Oldfield and T.V. Seshagiri Iyer, JJ.
JUDGMENT
John Edward Power Wallis, Kt., C.J.
1 . It has been found by both courts that the deed in question was obtained by
coercion, the coercion consisting in a threat by the fifth witness for the plaintiffs to
his wife and son that he would commit suicide if they did not execute the document.
2 . It is easy to set up such a defence and the evidence in support of it should
therefore be very closely scrutinized before it is held to be made out. Here it has
been found as a fact and we are not at liberty to interfere with the finding on second
appeal.
3. The case now comes before us on a Letters Patent Appeal owing to a difference of
opinion between Sadasiva Ayyar and Moore, JJ., as to whether the fact as found
amounted to coercion within the meaning of Section 15 of the Indian Contract Act.
4. The point mainly argued before us was that suicide was not an "act forbidden by
the Indian Penal Code" within the meaning of the section. With this I cannot agree. At
common law suicide was a form of homicide. "Homicide properly so called," says
Hawkins (Pleas of the Crown, Book 1, Chapter 9) "is either against a man's own life
or that of another." Wilful suicide was felony, and on a finding that the suicide was
felo de se, his chattels were forfeited to the crown like those of other convicted
felons. In Section 299 of the Indian Penal Code the offence of culpable homicide is
defined in terms which are sufficiently wide to cover deliberate suicide which is dealt
with by Mr. Nelson in his Indian Penal Code as a species of Unlawful Homicide,
though, of course, Section 302 and the following sections which prescribe the
punishment for the various kinds of homicide are only applicable to living offenders.
These sections are immediately followed by Sections 305 and 306 which make
abetment of suicide punishable with death in some circumstances and with lesser
penalties in others. Then, after dealing in Sections 307 and 308 with attempts to
commit murder and to commit culpable homicide, the Code proceeds in Section 309
to provide for attempts to commit suicide. I find it impossible to hold that an act
which it is made punishable to abet or attempt is not forbidden by the Indian Penal
Code, especially as the absence of any section punishing the act itself is due to the
fact that the suicide is in the nature of things beyond the jurisdiction of the court,
and it is no longer thought desirable to inflict a vicarious punishment on those who
come after him by forfeiting his goods to the crown.
5. As to the second point, the act threatened must be 'to the prejudice of any person
whatever, and would cover threats to a wife to murder her husband or to a son to
murder his father. Here the threat was by the husband and father to kill himself,
15-05-2019 (Page 1 of 4) www.manupatra.com Bennett University

which must be taken to be an act to his own prejudice which seems to me sufficient
to satisfy the section. I may add that I think the threatened act would also be directly
to the prejudice of the wife, as it must be taken to be to the prejudice of any wife to
deprive her of her husband, especially of a Hindu wife who thereby incurs all the
disabilities of a Hindu widow. For the same reason I think the act must be taken to be
to the prejudice of the son. I would therefore dismiss the appeal with coats.
6. Under Section 36 of the Letters Patent the appeal is dismissed with costs.
Oldfield, J.
7 . I have the misfortune to differ from the learned Chief Justice and therefore deal
with the case at length.
8 . The question is whether a threat to commit suicide is a threat to commit 'an act
forbidden by the Indian Penal Code' within the meaning of suction 15, Indian
Contract Act; and it is conceded that it is not forbidden either directly or in the sense
that a penalty is provided for it. It therefore can be regarded as forbidden only by
implication. It is accordingly in place to consider whether Section 15 can be
construed by implication or should be read strictly.
9. Section 15 has given rise to few decisions and to none, in which the policy of the
portion we are concerned with has been defined. No definition of that policy has been
suggested before us; and advisedly. For it would be hard to argue that any general
policy is in question, when the coercive character of an act depends on the
applicability to it of a statute, which, though wide, does not enumerate acts criminal
in India exhaustively, which (as the illustration shows) need not have been enacted
at all or need not have been in force at the date or place in question end which might
make conduct punishable, although it would be so under no law binding on those
concerned or of which they could even be presumed to have known. The test thus
provided may commend itself as definite, but can be regarded only as arbitrary and
not as intended to promote any general policy, by reference to which liberal
construction can be supported. Taking this view. I am bound to scrutinize
respondents' arguments closely.
1 0 . The first is that a threat to commit suicide is indistinguishable from one to
attempt to do so and that such an attempt is forbidden by Section 309, Indian Penal
Code, which penalizes it. The answer is that threats of these two descriptions are
distinguishable unless the word 'attempt' is used throughout the argument in its
ordinary sense as equivalent to 'endeavour' and not, as it must be in the second
place, where it occurs, in the legal sense, in which it is used in Sections 305 and
511. Further if the word is used in its legal sense throughout, a threat to attempt to
commit suicide is not only different from one to commit suicide, but is, like other
threats to commit an attempt, a contradiction in terms. For an attempt in the legal
sense can be recognized as such only after the criminal's intention has been
frustrated, not when it is expressed; that is, when the threat is made.
11. The remaining contention relied on is that the Code implicitly forbids suicide,
because in Sections 306 and 309 it explicitly forbids abetment of it and attempt to
commit it. But this will advance the argument, only if it corresponds with some
general principle; and it does not as regards abetment. For, apart from the cases of
abetment of children and lunatics, it is not suggested that acts done without guilty
knowledge or intention (and therefore innocently), but which nevertheless can be
abetted, under Section 108, Explanation 3, are forbidden. The principle, if there is
one, is therefore sustainable only subject to these exceptions. But, even so, reference
to it is useless. For it is not shown that it can be tested by application to any

instance, except the case of suicide, with which we are concerned; and there is no
more security for its validity, when such test is impossible, than for the validity of
respondents' argument as applied to that case alone.
12. Respondents must therefore succeed, if at all, on the single and direct contention
that in the case of suicide a prohibition can be inferred from the prohibition of
attempts to commit it: and with all respect, having decided in favour of a strict
construction of Section 15, Indian Contract Act, I cannot accept it. No doubt the only
species of prohibition, employed in the Code, the specification of a penalty, would be
useless in this case. But it does not follow that the failure to employ the other, direct
prohibition, or to make provision for the case of suicide in the Contract Act was due
to inadvertence and that the omission should be supplied by inference. For it is
possible that provision was omitted deliberately, because cases for its application
would be rare and their truth difficult to establish, the party alleged to be coerced
having usually easier means of preventing the accomplishment of the threat than by
entering into the agreement, sought to be avoided.
13. Holding that respondents cannot succeed on Section 15, I turn to Section 16 on
which they also rely. In this connexion the threat of suicide is irrelevant, since
Swami, who made it, was not a party to the contract; and there is no finding of fact,
which would support any exercise of undue influence by the parties to the contract,
appellants. This plea therefore fails.
14. As the majority of the court would dismiss the appeal with reference to Section
15, respondents' other contentions have not been heard. On the view I take, it would
be necessary to consider them before the appeal could be disposed of.
T.V. Seshagiri Iyer, J.
15. I agree with the judgment of the learned Chief Justice.
16. I do not think that the evidence in this case is sufficient to warrant a finding on
the question of undue influence. On the question of coercion, although I had some
doubts in the beginning, I have come to the conclusion that the facts do bring the
case within Section 15 of the Indian Contract Act. Mr. Patanjali Sastri argued that
threatening to commit suicide is not forbidden by the Indian Penal Code. A man who
commits suicide goes unpunished, because the law cannot reach him, and not
because the offence is not forbidden. The Code makes a person who abets the
committing of suicide punishable. It also reaches a man who attempts to commit
suicide. Although therefore there is no provision in the Indian Penal Code which
forbids in terms the commission of suicide, there can be no doubt that the intention
of the legislature is to forbid such an act. I agree with Mr. Venkatarama Ayyar that
the term 'any act forbidden by the Indian Penal Code' is wider than the term
'punishable by the Indian Penal Code.' Simply because a man escapes punishment, it
does not follow that the act is not forbidden by the Indian Penal Code. For example, a
lunatic or a minor may not be punished. This does not show that their criminal acts
are not forbidden by the Indian Penal Code. On the same analogy, a man who
commits suicide escapes punishment because by committing the act, he is out of the
reach of the law. Where the abetment of it and the attempt to do it are both made
punishable by the Indian Penal Code, I am prepared to hold that the act itself is one
forbidden by the Indian Penal Code.
17. The second contention of the learned vakil was that the threat to commit suicide
could not have prejudiced the plaintiff. I agree with him that mere sentimental
prejudice is not what the law contemplates. As pointed out in The Queen v. The
Metropolitan Board of Works (1863) 3 B. & S. 710, some legal injury must flow in

order that the man may be said to have been prejudiced; see also Clark v. London
General Omnibus Company, Limited (1906) 2 K.B. 643. Accepting this test, I am
unable to hold that the wife to whom the threat was addressed by a husband that he
would commit suicide in case she did not execute a document is not prejudicially
affected by such a threat. In my opinion the possibility of the husband dying leaving
the wife and the child uncared for is sufficient in the eye of the law to furnish the
ground of prejudice. On this ground, I agree with Mr. Justice Sadasiva Ayyar in
thinking that Exhibit A was brought about by the use of coercion and that it should be
set aside.
18. The appeal should be dismissed with coats.
© Manupatra Information Solutions Pvt. Ltd.

Kali Bakhsh Singh vs Ram Gopal Singh on 27 November, 1913
Bombay High Court

Equivalent citations: (1914) 16 BOMLR 147
Author: Shaw
Bench: Shaw, Moulton, J Edge, A Ali
JUDGMENT Shaw, J.
1. This is an appeal from a judgment and decree of date the 21st May 1908, of the Court of the
Judicial Commissioner of Oudh, which reversed a judgment and decree of the Subordinate Judge of
Rae Bareli, dated the 15th February 1907.
2. The plaintiffs ask that a decree for actual and proprietary possession of certain shares in villages
in Pargana Salon be passed in their favour against the defendants, and for an account of mesne
profits.
3. It is unnecessary to enter upon many details of the case. The portion of it which was laid before
the Board consists in a demand for cancellation of a Deed of Gift dated the 24th September 1903,
executed by one Balraj Kuar in favour of Ganga Bakhsh Singh, son of the appellant, Kali Bakhsh
Singh,
4. This deed has been upheld by the Subordinate Judge, and has been declared invalid by the Court
of the Judicial Commissioner.
5. It is important to observe what were the grounds for the cancellation of this deed. They are
gathered together in the issues framed by the Subordinate Judge, and are as follows :
(1) Did the lady execute the Deed of Gift?
(2) Was it written and completed without her knowledge?
(3) Was she able to understand the transaction ?
(4) Was she of unsound mind at the time of the writing of the said Deed?
6. The relation of the parties to the Deed was, briefly stated, this:Balraj Kuar, who died two months
after the execution of the Deed of Gift, was a pardanashin lady. She was possessed of a number of
villages, or rather of shares therein, and she had become absolute owner thereof as the result of gifts
made by one Bishunath Singh. At least six Deeds of Gift are produced, and there can be little doubt
that the lady thoroughly understood this form of transaction. Her husband had died many years
before, namely, in 1881, and her property was managed by Kali Bakhsh Singh, who was her
mukhtart and with whom she formed an intimacy, the result of which was the birth of two
illegitimate daughters. One of these was alive at the date of the Deed.
Indian Kanoon - http://indiankanoon.org/doc/1632707/ 1

7. Ganga Bakhsh Singh was the legitimate son of Kali Bakhsh Singh, and the suggestion seems to be
warranted which points not only to the affection which Balraj Kuar had for Kali Bakhsh but to the
attachment which she had formed to the boy. The interests represented by the plaintiffs-are derived
from remote relationship to Brij Mohan Singh, the deceased husband, and to Bishunath Singh, the
father-in-law, of the lady.
8. Upon the issues as framed and the contentions of parties as pled, the Subordinate Judge, who
manifestly conducted the case with great care, had no doubt. As to the plaintiffs evidence he holds
that it " is absolutely unreliable and seems to me a pure concoction. Reasons are given for this
opinion, and the judgment upon this part of the case does not seem to be controverted in the Court
of the Judicial Commissioner. In short, the attack upon the Deed by the evidence led by the
plaintiffs has failed.
9. As to the evidence tendered in support of it the matter stands thus Ex facie, it is duly signed and
attested. It bears the signature of Balraj Knar, of the Patwari Lachman Pershad, and of three other
witnesses, including the family priest. Above all, there is the certificate of Bunyad Husain, the
Sub-Registrar of Salon, as to what occurred when the Deed was produced by Balraj Kuar before him
at her residence. It is duly registered. There seems no reason to doubt the value of his testimony,
which is believed in its entirety by the Subordinate Judge. Apart from the circumstances to be now
mentioned the Deed appears to be beyond suspicion, being attested by just those persons who would
be naturally called in for such a purpose and being registered in the usual way by the proper officer.
10. Their Lordships incline to the opinion that the judgment of the Subordinate Judge would not
have been reversed but for the controlling weight which was attached by the Court of the Judicial
Commissioner to the fact that the lady in the transaction had not independent advice. The view, put
briefly, adopted in that Court is this: The Deed was executed in favour of the son of a paramour, and
therefore, to all intents and purposes, in favour of the paramour himself, he also being a person who
was her mukhlar. Although there is no direct evidence that he ever influenced her to make a gift in
favour of his son, still, in the circumstances, the Deed (so it is maintained) must fall, because the law
makes an absolute demand that a person in such a situation should have independent advice. The
absence of this element entitles a Court of law to set the Deed aside.
11. There are several circumstances which favour this conclusion. Ill the first place, the lady was a
pardanashin lady, and the law throws around her a special cloak of protection. It demands that the
burden of proof shall in such a case rest, not with those who attack, but with those who found upon
the Deed, and the proof must go so far as to show affirmatively and conclusively that the Deed was
not only executed by, but was explained to, and was really understood by, the grantor, In such cases
it must also, of course, be established that the Deed was not signed under duress, but arose from the
free and independent will of the grantor. The law as just stated is too well settled to be doubted or
upset. It was expressly re-affirmed by this Board in the case of Sajjad Husain v. Wazir AH
Khan(1912) L.R. 39 I.A. 156, 14 Bom L.R. 1 and nothing that is now said can, or is intended to,
disturb it.

12. In the next place, a fact which has given rise in their Lordships' minds to considerable difficulty,
has been that Kali Bakhsh, the father of the donee, and the mukhtar of the donor was not examined
as a witness.
13. This brief review is given by way of indication that the judgment now to be announced has been
arrived at after a full balancing of the considerations both in fact and in law which affect the
question to be determined.
14. The property conveyed by the Deed of Gift amounted, as the Board were informed, to about
one-half of the lady's estate. It was not contended that her outward style or mode of life had thereby
been changed, or that any impoverishment had occurred, the case being thus distinguished from
those of donations of practically the entire property of the donor, of which the case of Sajjad Husain
above referred to was an instance.
15. Their Lordships are satisfied on the salient features of the case as follows :
1. As to the execution of the Deed. The challenge of this has failed, and both the Courts below hold
the execution to be properly and satisfactorily established.
2. As to the capacity of the grantor. Upon this subject the Courts below are also agreed in holding
that competency is proved. In their Lordships' judgment, this is so, as after mentioned, in a special
degree.
3. As to the Deed being read over and explained. Again both Courts are agreed. But while the
Subordinate Judge think, that the explanation was thorough, the Judicial Commissioners appear to
incline to the view that it was perfunctory, Upon this matter much depends upon whether the
grantor of the Deed was a person accustomed to business or to the management of affairs. It is upon
this point that their Lordships find themselves in agreement with the Subordinate Judge. In doing
so they found upon what is admitted, not only by him, but by the Court of the Judicial
Commissioner. It appears that the lady had been in the habit for a considerable period of years of
managing her affairs, of entering up her accounts, and of attending to business. Upon another part
of the case it rather appears from the judgment of the Judicial Commissioner, Mr. Chamier, that the
lady had much strength of will, and that her father-in-law, Bishunath Singh, " used to obey Balraj
Kuar more than the latter obeyed him" while with reference to the issue now under discussion, the
same Judicial Commissioner says : " It is proved by evidence adduced by the plaintiffs that Balraj
Kuar signed her own accounts and looked after her own affairs." Their Lordships, in short, do not
entertain much doubt that this pardanashin lady was a capable woman, fully alive to the direction of
her own interests, and well aware of what she was doing.
4. As to undue influence. Nothing of this kind is proved affirmatively, and the inference upon the
subject must depend to a considerable extent upon the view which is taken as to the capacity of the
grantor of the deed. The suggestion that Kali Bakhsh prompted a gift in favour of his son does not
seem to rest upon anything more than that he was mukhtar, or held a power of attorney in regard to
the management of her property. It is regrettable that the matter was left thus in the region of

conjecture. There is no evidence of any kind that the mukhtar either mismanaged or overmanaged
anything committed to his charge, or that in any particular regarding her affairs he withstood the
lady or controlled her purposes. It is accordingly necessary to consider whether the facts of this case
fall under the general and useful category of the principle which, in the language of Lord Kingsdown
in Smith v. Kay (1859) 7 H.L.C. 750 "applies to every case where influence is acquired and abused,
where confidence is reposed and betrayed." Their Lordships do not find themselves able to affirm
that such abuse or betrayal occurred. It is no doubt true that the evidence in such a case would not
require to have been very strong, but there is no evidence at all which would lead to the conclusion.
16. As stated, their Lordships incline to think that the judgment of the Subordinate Judge would
have been affirmed by the Judicial Commissioners but for the view thus expressed:" It is needless to
cite authorities to show that such a gift cannot stand unless it is proved that the lady had
independent advice."
17. In their Lordships' opinion there is no rule of law of the absolute kind here indicated. The
possession of independent advice, or the absence of it, is a fact to be taken into consideration and
well weighed on a review of the whole circumstances relevant to the issue of whether the grantor
thoroughly comprehended, and deliberately and of her own free will carried out, the transaction. If
she did, the issue is solved and the transaction is upheld but if upon a review of the facts which
include the nature of the "thing done and the training and habit of mind of the grantor, as well as
the proximate circumstances affecting the execution if the conclusion is reached that the obtaining
of independent advice would not really have made any difference in the result, then the Deed ought
to stand. The present, in their Lordships' judgment, appears to be a case of that kind.
18. Their Lordships, as already mentioned, have fully in view the fact that the lady was a
pardanashin lady, but the evidence as to her strength of will and business capacity, and the fact that
the Deed as granted is not in the circumstances of her life in any way an unnatural disposition of
part of her property, go far, taken together with the evidence in this case, to convince them that the
Deed was granted by her as the expression of her deliberate mind and apart from any undue
influence exerted upon it. In short their view is that if independent outside advice, which is an
essentially different thing from independent outside control, had been obtained, the lady would
have acted just as she did. Much as their Lordships support and approve of the protection given by
law to a pardanashin lady, they cannot transmute such a legal protection into a legal disability. She
might, especially if the outside adviser had been a lawyer, have altered the shape or form of the
transaction, but in substance and result she would have carried out the same purpose and will as are
expressed by the Deed under challenge. They refer to the judgment of Lord Macnaghten in
Mahomed Buksh Khan v. Hosseini Bibi (1888) L.R. 15 I.A. 81.
19. In these circumstances their Lordships will humbly advise His Majesty that the judgment and
decree appealed from should be reversed and that of the Subordinate Judge of date the 15th
February 1907 should be restored. The appellants will be entitled to the costs since the date of the
last-mentioned judgment and to the costs of this appeal.

Khandu Charan Polley And Anr. vs Sreemati Chanchala Bhuinya on 13 March, 2002
Calcutta High Court

Equivalent citations: AIR 2003 Cal 213
Author: N C Sil
Bench: N C Sil
JUDGMENT Narayan Chandra Sil, J.
1. This appeal has been directed against the judgment and decree dated 20-1-1997 passed by Sri S.
K. Nandi, Learned Additional District Judge, 1st Court, Howrah in connection with Title Appeal No.
222 of 1993 reversing the judgment, and decree dated 31-7-1993 passed by Sri S. S. Chatterjee,
learned Munsif, 7th Court, Howrah in connection with Title Suit No. 19 of 1991.
2. The suit before the Trial Court was for injunction and recovery of possession after evicting the
licencee on revocation of licence. The Trial Court dismissed the suit but the Lower Appellate Court
was pleased to allow the appeal and having reversed the judgment and decree passed by the Trial
Court, decree the suit.
3. At the time of admission of the appeal the Division Bench of this Court was pleased to pass an
order that the appeal will be heard on all grounds taken in the memorandum of appeal.
4. It is stated in the grounds of appeal that the learned Judge erroneously held that the plaintiff was
an illiterate, rustic woman and is entitled to special protection of law. It is also stated that the Lower
Appellate Court totally overlooked the material point to the effect that the plaintiff was a party to a
partition deed in 1976 and she is not entitled to get any protection as pardanashin lady inasmuch as
she had arranged the marriage of her sister and she sells fish in the market. It is also stated in the
grounds of appeal that the plaintiff admitted in her evidence that the deed was explained to her to
the effect that after her demise some portion of the property would devolve on the defendants in
terms of deed in question, but this evidence was overlooked by the Lower Appellate Court.
5. Thus, to sum up the grounds taken in the memo of appeal by the appellant/defendant and to
formulate the substantial question of law for the purpose of determination in the present appeal my
enquiry will be whether the plaintiff had executed the deed in question with her full knowledge and
whether the Lower Appellate Court made any perverse finding in arriving at its decision.
6. The plaint case before the Trial Court in brief is that the plaintiff is the absolute owner of the suit
property. The plaintiff is a childless, illiterate widow and there was none to guide her in the
management of her landed properties. In such situation the plaintiff sought the help of the
defendant No. 1, who is the husband of the defendant No. 2. The defendant No. 2 is the sister of the
plaintiff. But the defendant No. 1 suggested the plaintiff to execute a written authority in his favour
to which the plaintiff agreed. Thereafter as advised by one Basudeb, a friend of the defendant No. I
working in the Registry Office that the plaintiff was required to execute a power of attorney in favour
of the defendants, the plaintiff went to the Registry Office and put her thumb-impression on a deed
which was never read over and explained to her. Thereafter in the month of November, 1989 the
defendant started quarrel with the plaintiff and threatened her to drive away from the suit property.

Then the plaintiff obtained the certified copy of the deed and came to know that the said deed was
turned into a family settlement in favour of the defendants, although the plaintiff was under the
impression that she had executed a power of attorney in favour of the defendants. It is the further
case of the plaintiff that she permitted the defendants to use two rooms in the suit property in order
to look after the suit property during the absence of the plaintiff. But, the moment the plaintiff came
to know as regards the fraudulent deed, she revoked the licence and asked the defendants to quit
and vacate the suit property. The defendants contested the suit before the Trial Court and denied all
the material allegations made in the plaint. It is the case of the defendant the plaintiff brought her
sister, the defendant No. 2 in the suit property and gave her in marriage to the defendant No. 1 and
thereafter the defendants started living in the suit premises. It is also the case of defence that the
plaintiff but of her own will had executed the deed of settlement in question and the said deed was
properly registered.
7. Mr. Soumitra Pal, learned advocate appearing for the appellants/defendants submits before me
that the plaintiff admitted in her evidence that she had talks with the Sub-Registrar and the deed
was read over and explained to her. It is also pointed out by Mr. Pal that all the DWs are the persons
who had signed in the deed in question. In this connection the learned advocate for the appellant
had referred to the ratio decided in the case of Kuppuswami v. Arumugam, . In the said case the
High Court held that the Ext. B-1 was not vitiated by misrepresentation and the appellant was well
aware of the nature of the deed when he executed it. The appellant was somewhat deaf of hearing.
But he was a wealthy and shrewd money lender and capable of managing his affairs. He took the
draft of the deed to his own lawyer and after obtaining legal advise, executed it. He himself
presented the deed for registration. There were other facts mentioned in the said judgment and after
having considered all those facts in the background, the High Court held that the plea of the
appellants that the deed was induced by misrepresentation, was an afterthought. The Apex Court
being in agreement with the High Court had accepted the testimony of the respondents witnesses
and rejected the evidence of the appellant and his witness. Thus the Apex Court held that the onus is
on the appellant in such circumstances to establish the plea of misrepresentation.
8. Mr. P. R. Mitra, learned advocate appealing for the respondent/plaintiff submits before me that
the Lower Appellate Court had examined the evidence of the witnesses and thereafter arrived at the
decision to reverse the judgment and decree of dismissal passed by the Trial Court. Mr. Mitra has
further argued before me that when the deed is executed by an illiterate, rustic lady and grounds of
misrepresentation and inducement are taken, the onus lies heavily upon the other side to prove that
there was no misrepresentation or any inducement. In this connection Mr. Mitra has referred to a
number of case laws.
9. Thus it was held in the case of Abdul Jabbar v. Venkata Sastri, that prima facie the Registering
Officer puts his signature on the document in discharge of his statutory duty under Section 59 of the
Registration Act and not for the purpose of attesting it or certifying that he has received from the
executant a personal acknowledgment of his signature.
10. Mr. Mitra has then referred to the ratio decided in the case of Amiruddin Ali v. Kali Bala Bhunia,
1993 (97) CWN 495. In the said case a suit was filed far declaration that the plaintiff was persuaded

to execute a deed of sale on the misrepresentation that it was a power of attorney. The said suit was
decreed concurrently by the Courts below. In the Second Appeal it was urged that the onus of proof
was wrongly placed on the dependant/appellants. In such circumstances It was held by the learned
single Judge of this Court that the burden of proof always rests upon the person who seeks to
sustain a transaction entered into with a pardanashin lady to prove that the transaction was not only
her physical act but also a mental one. It was also held in that case that the said protection is
extended to an illiterate village woman. A similar decision was also made in the case of Chameli
Debi v. Purusattam Singh, by the Division Bench of this Court and also in the case of Shrimati
Khetrabala Ghosh v. Ambus Bala Basuri, AIR 2001 NOC 111 by the learned single Judge of this
Court.
11. Mr. Mitra has then referred to the ratio decided in the case of Paras Nath v. Mohani Dasi, AIR
1959 SC 1204. It was observed in that case by the Apex Court that it was clear that the decision of the
High Court on the second Appeal, reversing the concurrent finding of fact of the two Courts is based
upon the impression drawn from evidence oral and documentary after misplacing the onus of proof,
which the High Court was not entitled to do.
12. In order to arrive at a proper finding on the substantial question of law formulated for the
purpose of determination in the present appeal, the evidence of the parties adduced in this regard is
required to be considered. Smt. Chanchala Bhunia , the plaintiff of the suit had examined her self as
PW-1 before the Trial Court. She stated in her evidence that she was an illiterate lady. She asked the
defendants to look after her property and at this the defendant No. 1 asked the PW-1 to execute a
deed in his favour in respect of the property and for that purpose the defendant No. 1 took her to the
Registry Office and asked her to put her LTI on a paper and accordingly she put her LTI on paper.
She further stated in her examination-in-chief.
"The contents were not read over and explained to me. Thereafter I asked the Mohorar to read it
over to me. He did not show me any paper. Mohorar explained to me that it was written in the said
paper that on my demise the defendant No. 2 would get one room. Thereafter the Sub-Regd. asked
me certain questions and I have answers to that."
She also stated in her evidence that she had no intention to give up all her properties in favour of the
defendants. In her cross-examination the PW-1 stated that she did not execute the deed of her own
will. It was also stated by her that the deed was not read over and explained to her by Basudeb. The
PW-1 stated in her further cross examination "It is fact that I sometimes give out that I will take
back the property being compelled with the situation." No other witness had been examined on
behalf of the plaintiff. As much as four witnesses were examined on behalf of the defendants. Out of
them DW-1 is the defendant No. 1 himself. DW-2 is the deed writer. Basudeb Ghughu is the DW-3
and the DW-4 is the brother of the DW-1. The DW-2 stated in his examination-in-chief that the
discussions as regards the preparations of the deed was held sitting in the house of Chanchala in her
presence and the deed was written as per her instructions. He further stated that the plaintiff made
the expenditure for the deed, which was of course denied by PW-1. It is further stated by him that
the deed was drafted as per instructions of the PW-1 and the attesting witnesses signed in her
presence. There is nothing in the evidence of the DW-2 that he read over and explained the deed to

the plaintiff after the same was written. It is also in the evidence of the DW-2 that the discussion was
held prior to two or three days of the date of the registration and the matter of discussion was put
down in black and white. It is admitted by the DW-2 in his cross-examination, "I did not say to the
plaintiff that after the deed she would have no title therein." The DW-2 has also stated, "The deed
was drafted on one or two days before the registration". He could not say the exact date of drafting
the deed although the DW-2 stated in his cross-examination that he took some notes as regards the
main points to be drafted in the deed and there was no paper excepting the deed to show that the
discussion as regards the deed was held at the residence of the plaintiff.
13. Basudeb Ghughu is the DW-3. He stated in his evidence that the plaintiff expressed her desire to
transfer her property to the defendants and asked the DW-3 to identify her in the Registry Office:
The DW-3 stated in his examination-in-chief, "the deed writer only read over and explained the
deed to her" (underlined for emphasis). But, it may be stated here that nowhere in the evidence of
the DW-2 who is the scribe stated that he read over and explained the deed to the plaintiff. The
DW-3 admitted in his cross-examination that the plaintiff is an illiterate lady and that the plaintiff
has no other accommodation for her residence. The DW-3 claimed that he had explained to the
plaintiff that after the execution of the deed she would have right to live during her lifetime in
respect of one room on the suit" premises. But, on my scrutiny there appears nothing in the deed in
question (Ext. A) that one room will be in possession of the plaint if during her lifetime. And what is
striking in the evidence of the DW-3 is, "The writing of the deed and registration was completed in a
single day". Here I may hark back to the evidence of the DW-2 who is the scribe and who stated that
the writing of the deed was made one or two days before the registration. The DW-3 appears to have
contradicted his own statement in evidence as regards the explanation of the recitals in the deed
vis-a-vis the right of the plaintiff after the execution of the deed when the DW-3 stated in his
cross-examination, "I have done nothing in respect of the deed except attestation and
identification". And then again he stated, "I was there in the Registry Office to explain the deed".
Nemai Polley is the DW-4. He is the brother of the defendant No. 1. He claims himself to be present
at the time of negotiation of marriage of the defendant No. 1 with defendant No. 2 and he stated "at
the time of negotiation the plaintiff stated that in lieu of dowry she would give property to my
brother". The DW-4 further stated that there are six rooms in the house and out of those six rooms,
four rooms were constructed by his brother and in those four rooms "the defendants reside. But, in
his cross-examination, the DW-3 stated, "I cannot say as to who spent for those rooms". The DW-4
had also claimed that the deed was read over and explained by the Mohrar that is the scribe. But, it
may be repeated that DW-2 never stated in his evidence that he read over and explained the deed to
the plaintiff. In his cross-examination the DW-4 admitted that he had not read over the deed to the
plaintiff. It is also admitted by the DW-4 that he had no talks about the deed before the execution of
the same. The DW-4 contradicted the scribe who is DW-2 when it is stated by the DW-4, "We.
reached Registry Office at 10 A.M. Thereafter the deed writer came and drafted our deed", although
it is in the evidence of the deed writer himself that the deed was drafted one or two days before its
registration. The DW-4 ultimately admitted that he did not know about the contents of the deed.
14. The defendant No. 1 is the DW-1 in the instant case. Like his brother, the DW-4, the DW-1 had
brought altogether a new story in his evidence that at the time of negotiation of marriage the
plaintiff agreed to give suit property to the defendants and that the defendant No. 1 would live as a

domesticated son-in-law. To my utter dismay I do not find any such averment to that effect made in
the written statement filed by the defendants. The DW-1 stated that there are five rooms (and not six
rooms as claimed by DW-4) in the suit premises and out of those five rooms plaintiff is in
occupation of three rooms and the other two rooms are in the occupation of other defendants. This
is also not in corroboration of the evidence of other witnesses. The DW-1 claimed that he
constructed three rooms out of the five rooms from his own pockets. The DW-1 stated in his
examination-in-chief. "The said deed was read over and explained to the plaintiff by Basudeb
Ghughu" but Basudeb Ghughu, the DW-3 stated nothing to that effect that he had read over and
explained the said deed to the plaintiff and on the other hand, at the cost of representation, the
DW-3 stated that it was only the DW-2 who had read over and explained the deed to the plaintiff,
DW-3, the DW-1 admits, is the friend of DW-3.
15. It is candid from the evidence discussed above that the DWs sharply contradicted with each
other on the vital question as to who read over and explained the deed in question to the plaintiff
who is a rustic and illiterate woman. Beside the DW-2, who is a scribe, all the other witnesses of the
defence are highly interested and sometimes they appeared to be over zealous. The evidence as
discussed above will show that the defendants had miserably failed to substantiate that the deed in
question was read over and explained to the plaintiff.
16. Ext. A is the deed in question in the cause title of the said deed it is described as a
"Bandobastonama" (deed of settlement) in respect of the house buildings along with the lands, it
appears from the recitals of the said deed that the executrix gave the property appertaining to
Khatian No. 539, Plot No. 3 measuring 4 decimal keeping only her life interest of joint living with
the defendants. There is nothing in the evidence adduced by the parties us to why the plaintiff did
not keep her title in any of the rooms on the suit property.
17. The ratio decided in the case of Kuppuswami supra as referred to by the learned Advocate for the
appellant as already discussed, does not appear to have any application in the instant ease, for, the
facts of that case are altogether different from the facts in the instant case. In the said case the
executant was only deaf of hearing but, he took the draft of the deed to his own lawyer and after
obtaining legal advice had executed the same. In the instant case the plaintiff is admittedly an
illiterate rustic woman.
18. From the case laws cited by the learned Advocate for the respondent/plaintiff it is candid that
the protection which a pardanashin lady is entitled, is also available to an Illiterate village woman.
19. In the case of Mallo v. Bakhtawari, the donor was art illiterate lady who filed a suit for
cancellation of the deed of gift on the ground that the deed of gift was obtained by exercising fraud.
The burden of proof that the gift was valid lay on the donee. It was held in the case of Jadu Gopal v.
Parma Lal, that the construction of the basic document which goes to the root of the matter is a
question of law and could be gone into in second appeal. It was held in the ease of K.D. Kadam v.
S.S. Gujar, that the concurrent findings of fact, however erroneous, cannot be disturbed in the
second appeal but in paragraph (5) of the same judgment it was held by the Hon'ble Apex Court that
the High Court cannot substitute in its own opinion for the first Appellate Court unless it is found

that the conclusions drawn by the lower appellate Court were erroneous being contrary to the
mandatory provisions, of law applicable or its settled position on the basis of pronouncement made
by the Apex Court or was based upon inadmissible evidence (underlined for emphasis)
20. Thus from the above three cases it is clear that the onus was on the defendants in the instant
case to prove that the deed in question (Ext. A) was executed by the plaintiff of her own volition and
without any misrepresentation which the defendants, as discussed earlier from the evidence
adduced by the parties before the trial Court, had miserably failed to discharge.
21. The learned Munsif had failed to appreciate the purport of the evidence adduced by the parties
before him and misdirected himself on shifting the onus in the instant case.
22. As the deed in question (Ext. A) goes, the status of the defendants in the suit property is
unmistakably one of a licensee which the plaintiff had revoked. It is the admitted case of defence
that the defendants were asked by the plaintiff to reside in the suit premises. The defendant has not
taken any case of tenancy. Thus the plaintiff has succeeded to substantiate her claim that the
defendants are the licensees and she had revoked the said licence. Therefore, in view of all what has
been discussed above the appeal is liable to be dismissed.
23. The appeal is, therefore, dismissed on contest. The judgment and decree passed by the Lower
Appellate Court are hereby affirmed. The judgment and decree of dismissal of the suit passed by the
Trial Court are set aside.
24. The suit is decreed. It is hereby declared that the deed of settlement dated 20-3-78 is void and
inoperative. The plaintiff do also get a decree for eviction against the defendants from the
B-schedule property. There shall be no order as regards the other prayers of the plaintiff in the suit
considering the relations of the parties.
25. The parties are directed to bear their respective costs.

MANU/UP/0045/1890
Equivalent Citation: (1890)ILR 12All523
IN THE HIGH COURT OF ALLAHABAD

First Appeal No. 34 of 1889
Appellants: Mannu Singh
Vs.
Respondent: Umadat Pande and Ors.
Douglas Straight and Syed Mahmood, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Juala Prasad and Rajendro Nath Mukerji
For Respondents/Defendant: Bishan Chandra Moitro
JUDGMENT
Douglas Straight, J.
1. This first appeal relates to a suit instituted on the 23rd August 1888, in the Court
of the Subordinate Judge of Azamgarh by the plaintiff, who is the appellant before
us, against the defendants, five in number, the principal of whom is one Umadat
Pande, a Brahman, the donee under an alleged deed of gift of 26th April 1888. The
suit is not an ejectment suit, but is one to obtain the specific form of relief
contemplated by s. 39 of the Specific Relief Act, and what the plaintiff asked was that
an alleged deed of gift of 26th April 1888 should be set aside; in other words, that
the Court should order the document to be delivered up and cancelled in the way
contemplated by the section of the Act to which I have referred. The grounds upon
which the plaintiff asked this relief I need not more particularly mention except to say
that at the outset he questioned whether he had over executed the alleged deed of
gift at all, and next he went on to say that if he had, the document was "spurious and
fictitious and it was not executed by him willingly and voluntarily." Now I am not
dealing with the plaint as a Court of first instance, or possibly I might, if it had been
first presented to me at the outset of the suit, have had something to say as to the
form in which it was drawn up, and I might have thought greater particularity in the
allegations of fraud necessary, but no objection was taken by the defendants to the
form of the plaint, and the suit proceeded to trial upon it as it stood. Both the parties
have given evidence in the cause, and upon that evidence the decision of the learned
Subordinate Judge has been passed in favour of the defendants and against the
plaintiff, which decision is the subject-matter of the appeal. The only plea that I think
it necessary to consider for the purpose of deciding this case is the second plea,
which is in the following terms: the decision is bad upon the ground that "the
transaction set up by the respondent cannot be enforced and recognised by a Court."
2. Now what is the case, taking the facts as put forward on the part of the plaintiff on
the one side and the defendants on the other? The plaintiff is a Chatri by caste. He is
a man well advanced in years; one who not unnaturally would be contemplating that
death could not be very far distant. As with most Hindus, he necessarily attached
great importance to and held in high reverence the ministrations of brahmans, to
which caste the principal defendant Umadat belongs. Umadat is a man of some 43

years of age, and it is obvious from the remarks of the learned Subordinate Judge
that he is a person held in high consideration amongst the people of the locality in
which he resides. Now the solo property of which the plaintiff was possessed in the
month of April 1888, whether in the shape of unencumbered proprietorship or in the
shape of an equity of redemption, was a two annas eight pics share in mauza
Sidhanna Raghoram, pargana Deogaon, valued, according to the plaintiff, at Rs.
6,000 or according to the defendant, Rs. 2,999, but subject to certain mortgage
charges the precise amount of which' is not clear. The document, concealment of
which is sought by the plaintiff, purports to have been executed by him upon the
26th April 1888, and having had an opportunity of examining the terms of the
instrument, I do not think I can do better than to state them as they have been
translated to us by the reader of the Court.
"I, Manuu Singh, son of Sheozor Singh, deceased, caste Chatri, by
occupation zamindar, and being resident and zamÃnÃ¡r of mauza Sidhanna
Raghoram, do hereby declare that, as I have become old and have no issue,
nor is there any hope that I shall, therefore, with a view of securing benefit
to my soul in the nest world, having a month ago heard the recital from Sri
Bhagwat by Umadat Pandit, caste Brahman, who is my guru or spiritual
guide, I have given a two annas share and out of two annas gultansi right of
Saran Singh, an eight pies share, in all, two annas eight pies share in mauza
Sidanna Raghuram of which I, declarant, am in possession, and have made a
present and a gift by danpattr to the aforesaid guru of the share aforesaid,
and he will remain in possession and pay Government revenue, and
defraying all usual expenses, derive benefit therefrom generation after
generation. Now I have no kind of concern, and I will cause mutation of
names and will bring forward no excuse. If on behalf of me there is any
evasion, then the guru may himself by application make mutation of names
on the document."
3. Now in this document, which has been found by the learned Subordinate Judge to
have been in fact executed by the plaintiff be states that the defendant is his spiritual
guide or guru, and in the defendant's own statement of defence in the suit, he also
has declared that he was the plaintiff's spiritual guide or guru, and according to the
fourth paragraph of the statement of defence, the circumstances under which the
deed of gift was made were as follows:--
"The plaintiff has heard him reciting the holy book called Bhagwat, and with
the view of deriving benefit in the next world, the plaintiff having made
eleemosynary gift (shankalp) of the property, willingly and voluntarily
executed a deed of gift (danpattr), and had it registered, and since the time
of the execution of the deed of gift, the defendant holds possession of the
property by payment of the Government revenue."
4. So that taking the deed of gift itself and the terms used in it in conjunction with
the statements made by the defendant himself, I have no doubt that the defendant
was the guru or spiritual guide of the plaintiff, and that such was the relation held by
him in regard to the plaintiff; moreover, I take the defendant's own statements as
showing what were the circumstances under which the document was executed by
the plaintiff in favour of the defendant. Now it is upon these materials that in my
opinion the appeal ought to be decided, and I do not think it is necessary to diverge
into other matters which are mentioned in the decision of the learned Subordinate
Judge, though I have to make a few remarks as to the contention which has been
raised before us to-day in regard to what appears in the learned Subordinate Judge's
judgment upon the point as to how far possession is necessary to constitute a valid

and binding gift under the Hindu law and how far, if it is, the principle or the rule of
Hindu law has been abrogated by s. 123 of the Transfer of Property Act, or in other
words, whether assuming in this case that there has been, as found by the learned
Subordinate Judge, no possession on the part of the defendant of the property the
subject of gift, the defect would be cured by the provisions of s. 123 of the Transfer
of Property Act. Our attention was called to the ruling of the Calcutta Court in
Dharmodas Das v. Nistarini Dasi MANU/WB/0097/1887 : I.L.R., 14 Calc., 446 also to
Harjivan Anandram v. Naran Haribhai 4 Bom. H.C.R. A.C., 31, Vasudev Bhat v.
Narayan Daji Damle MANU/MH/0019/1882 : I.L.R., 7 Bom. 131, Dagai Dabee v.
Mathura Nath Chattopadhya MANU/WB/0067/1883 : I.L.R., 9 Calc. 854, and last but
not the least, to the decision of their Lordships of the Privy Council in Kali Das
Mullick v. Kanhya Lal Pandit MANU/PR/0022/1884 : I.L.R., 11 I.A., 218 : I.L.R., 11.
Calc., 121, Now from the view in which I am disposed to deal with the case I do not
consider it necessary to enter into what is a complicated and difficult question, and
upon which at this moment I am not altogether satisfied as to what is the correct
view whether for the purpose of making a good title in the donee under the terms of
a gift, actual possession must be given to the donee in order to satisfy the
requirements of the Hindu law. There is of course direct authority in the ruling in
Dharmodas Das v. Nistarini Dasi MANU/WB/0097/1887 : I.L.R., 14 Calc., 446 for the
view that s. 123 of the Transfer of Property Act has so far overridden the Hindu law,
and there are also expressions of opinion of their Lordships of the Privy Council in
Kali Das Mullick v. Kanhya, Lal Pandit MANU/PR/0022/1884 : I.L.R., 11 I.A., 218 :
I.L.R., 11 at page 232 which raise considerable doubt and difficulty as to the
soundess of the principle that possession is absolutely necessary, but the exigencies
of the case do, not require that I should determine the question. It must therefore be
understood that any conclusion at which I arrive in this case is not based on any
determination of that question.
5 . Reverting to the position occupied towards one another by the plaintiff and the
defendant as they appear upon the materials before me, I have to say that I in no
way depart from the principles that I very fully discussed, considered and adopted in
Sital Prasad v. Parbhu Lal MANU/UP/0041/1888 : I.L.R., 10 All., 535. My judgment in
that case was one I took some pains to consider, and I endeavored therein to state in
as explicit language as I could what I believe to be the true rule that should govern
cases of this description. At page 545 of the report I said:--"But what the Courts in
this country will do, is to see that, where one person is so situated as to be under the
control and influence of another, such other does not unduly or unfairly exercise that
influence and control over such person for his own advantage or benefit, or for the
advantage or benefit of some religious object in which he is interested, and will call
upon him to give clear and cogent proof that the transaction complained of was such
a one as the law would support and recognise."
6. Then at a later stage I say:--
"Where a fiduciary or quasi fiduciary relation had existed, Courts of equity
have always placed the burden of sustaining the transaction upon the party
benefited by it, requiring him to show that it was of an unobjectionable
character and one which it ought not to disturb."
7 . Now this principle is recognized in the law of evidence in this country which
declares that "where there is a question as to the good faith of a transaction between
parties, one of whom stands to the other in a position of active confidence, the
burden of proving the good faith of the transaction is on the party who is in a
position of active confidence," (S. 111, Evidence Act, I of 1872). Now applying this
rule to the present case, what is the reasonable inference? The defendant was, as I

have found him to be, upon the statement of the plaintiff himself in his deed of gift,
and upon the defendant's statement, the guru or spiritual guide of the plaintiff and
without any other than the absurd reason given by the defendant, upon the 26th April
1888, the plaintiff was led to strip himself of all the property of which he was
possessed and to hand it over to the defendant. Would any reasonable man in full
possession of his senses and not under unusual influence of some kind or other do
such a thing? If, instead of having been able to go about at the time when he made
the deed of gift, the plaintiff had been confined to his bed by illness, what would
have been the inference, or if that sickness had ended in death, what would have
been the inference? I have no doubt that the rule I have indicated is a sound one, for
the purpose of protecting people who from their religious fanaticism or old age and
infirmities are under the influence and control of others when they have been
influenced into doing what they would not otherwise have done, by requiring that the
person seeking to sustain the transaction should show that it was carried through in
perfect good faith and in such a way as to show that it was the voluntary and
spontaneous act of the party to he affected. Now it does not appeal to me, reading
the learned Subordinate Judge's judgment and giving full effect to the argument
addressed on behalf of the respondent and to the evidence, that there was any proof
before the Court below nor is there before us to show us that the transaction of the
26th April 1888 was one that by our decree we ought to sustain, and speaking for
myself I am quite unable to uphold it, taking as I do the defendant's own evidence,
which leaves on my mind the irresistible impression that the defendant did take
advantage of his relation towards the plaintiff to lead him to do this most
improvident act and one which he almost immediately after repudiated. But even if I
do not put it so high, it seems to me that the defendant has wholly failed to
discharge the burden of showing that the transaction was made without undue
influence and in good faith. I held that in the absence of proof of this kind, the gift to
the defendant must be treated as invalid, and that the plaintiff is entitled to the relief
he seeks. I therefore am of opinion that the learned Subordinate Judge was wrong in
the view he took, and reversing his decree, I decree the appeal and the claim of the
plaintiff, and I direct that a decree be prepared in favour of the plaintiff for the
purpose of giving effect to his claim in accordance with s. 39 of the Specific Relief
Act. The plaintiff will get his costs in all the Courts.
Syed Mahmood, J.
8. I am of the same opinion and wish to add nothing beyond saying that I concur in
the doctrine laid down by my brother Straight in Sital Prasad v. Parbhu Lal
MANU/UP/0041/1888 : I.L.R., 10 All., 535, so far as the ruling applies to the
existence of fiduciary relationship between a priest or spiritual guide of persons in
transactions with the latter, so that all the presumptions would be against the
defendant in the case, and the decree passed by my learned brother is the only one
that could be passed in the case.

Oriental Fire & General Insurance ... vs Mrs. Kamal Kamini Das And Ors. on 19 November, 1971
Orissa High Court

Equivalent citations: AIR 1973 Ori 33
Author: G Misra
Bench: G Misra, S Acharya
JUDGMENT G.K. Misra, C.J.
1. Publius Machir Das was working as a Missioner in Children's Special Service Mission, Orissa, on a
pay of Rs. 293 per month which included his salary, clearness allowance, house-rent, children's
allowance etc. His headquarters was at Baptist Church Lane, Berhampur, in the district of Ganjam.
He had gone to Rourkela in the district of Sundargarh on tour on 10-10-1963. At about 11-30 a. m.
that day while he was going on a cycle, a Mercedes Benz Truck O. R. O. 2022 came at a very high
speed and tan over him by rash and negligent driving. He died instantaneously on the spot as a
result of the accident. The vehicle had been insured with Oriental Fire & General Insurance Co.,
Branch Janpath, New Delhi (hereinafter to be referred to as the Company) (Opposite Party No. 3).
The date of birth of the deceased was 13th April, 1905 and he was about 58 1/2 years old at the time
of death. The ten claimants are the widow, sons and daughters of the deceased. An application for
compensation was filed under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter to be
referred to as the Act) before the Motor Accidents Claims Tribunal (hereinafter to be referred to as
the Tribunal) wherein Rs. 59,772/- was claimed as the amount of compensation. It was stated in the
application that the deceased was very healthy and was expected to survive till his 75th year. The
ancestors of the deceased were said to have lived up to the 80th year and the normal expectancy of
life in the family of the deceased was not less than the 75th year. The amount of compensation was
calculated with an expectancy of life for 17 years more on the basis of Rs. 283/- as the monthly
income of the de-ceased. Opposite Parties 1 and 2 were des-called as the owners of the vehicle.
Opposite Party No. 1 having purchased the vehicle from Opposite Party No. 2 on hire-purchase
system and all the instalments not having been paid by then.
The defence was that the deceased was a workman under the Workmen's Compensation Act and as
such the Tribunal had no jurisdiction to entertain the claim. The claim was barred by limitation and
the expectancy of life of the deceased cannot be more than 55 years. The monthly income of the
declared had been highly exaggerated and the claim was excessive.
Five witnesses were examined on behalf of the petitioners and sons on behalf of the opposite parties.
No documents were put in evidence except the post-mortem report and the F. I. R.
2. The Tribunal recorded the following findings:
(i) The deceased was killed by the rash and negligent driving of the driver of O. R. O. 2022;
(ii) The deceased was not a workman and the Workmen's Compensation Act has no application to
this case;
(iii) The claim was not barred by limitation;

(iv) The monthly income of the deceased was Rs. 283/-;
(v) The petitioners were entitled to compensation at a round figure of Rs. 40,000/-which is to be
paid by S. Karam Singh (Opposite Party No. 1).
The appeal has been filed by Opposite Party No. 3 making the petitioners and Opposite Parties 1 and
2 as respondents.
The first four findings are not assailed in this appeal.
3. Mr. Patnaik challenges the quantum of compensation and the extent of liability of the appellant,
4. The judgment of the learned Tribunal is somewhat superficial and does not refer to the relevant
law on the point. It is therefore necessary to first state and analyse the relevant law.
5. Claims Tribunals have been constituted under Section 110 of the Act.
An application for compensation is to be filed under Section 110-A within a period of six months of
the occurrence of the accident.
Section 110-B speaks of the award of the Claims Tribunal. It runs thus:--
"Section 110-B. Award of the Claims Tribunals. -- On receipt of an application for compensation
made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being
heard, hold an inquiry into the claim and may make an award determining the amount of
compensation which appears to it to be just and specifying the person or persons to whom
compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount
which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all
or any of them, as the case may be."
Section 110-C deals with the procedurs and powers of Claims Tribunals.
Section 110-CC relates to award of interest where any chum is allowed. It lays down that where any
Court or Claims Tribunal allows a claim for compensation made under Chapter VIII, such Court or
Tribunal may direct that in addition to the amount of compensation simple interest shall also be
paid at such rate and from such date not earlier than the date of making the claim as it may specify
in this behalf. This section has been newly added by Act 56 of 1969 with effect from 2-3-1970 and as
such is not applicable to this case, the petition for compensation having been filed on 8-12-1963.
Section 110-D provides for appeals. Any person aggrieved by the award may prefer an appeal to the
High Court within 90 days from the date of the award.
Section 110-F bars the jurisdiction of the Civil Court. It says that where any Claims Tribunal has
been constituted for any area, no Civil Court shall have jurisdiction to entertain any question

relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for
that area, and no injunction in respect of any action taken or to be taken by or before the Claims
Tribunal in respect of the claim for compensation shall be granted by the Civil Court.
6. The object of this group of Sections 110 to 110-F of the Act is to supply a cheap and expeditious
mode of enforcing liability arising out of claims for compensation in respect of accidents involving
the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any
property of a third party so arising, or both as referred to in Section 110. Prior to the constitution of
the Tribunal, compensation could be claimed by institution of suits for damages only through the
medium of the Civil Court on payment of ad valorem court fee. This group of sections furnishes a
self-contained Code that the claims can be lodged on the basis of an application without payment of
ad valorem court-fee. By providing a direct appeal to the High Court second appeals are also
dispensed with. The Tribunal is to follow a summary procedure in determining compensation.
Despite a self-contained Code of procedure for adjudication of claims being provided, the lections do
not deal with the substantive law regarding determination of liability. They only furnish a new mode
of enforcing liability. For determination of liability one has still to look to the substantive law in the
law of torts and the Fatal Accidents Act, 1855 (hereinafter to be referred to as the 1855 Act) or at any
rate to the principles thereof. Section 110-B merely says that the Tribunal may make an award
determining the amount of compensation which appears to it to be just. The objective factors which
would constitute the basis of compensation appearing as just have not been indicated in the section.
The expression "which appears to it to be just" however vests a wide discretion in the Tribunal in the
matter of determination of compensation. Despite the wide amplitude of such power, the
determination cannot be arbitrary and must be based on certain data establishing reasonable nexus
between the loss incurred and the compensation to be awarded.
7. The burden of proof is undoubtedly on the claimants to establish the necessary ingredients for
obtaining compensation (See AIR 1962 SC 1 para 8, Gobald Motor Service Ltd. v. R.M.K.
Veluswami.) It is for them to plead and prove that there was an accident involving death arising out
of the use of motor vehicles and the loss accruing to them in terms of money value.
8. The substantive law as to how such compensation is to be determined is found in Section 1-A of
the 1855 Act. That section may be extracted:
"Section 1-A. Suit for compensation to the family of a person for loss occasioned to it by his death by
actionable wrong--Whenever the death of a person shall be caused by wrongful act, neglect or
default and the act, neglect or default is such as would (if death had not ensued) have entitled the
party injured to maintain an action and recover damages in respect thereof, the party who would
have been liable if death had not ensued shall be liable to an action or suit for damages,
notwithstanding the death of the person injured, and although the death shall have been caused
under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband, parent and child if any, of the
person whose death shall have been so caused, and shall be brought by and in name of the executor,
administrator or representative of the person deceased;

and in every such action the Court may give such damages as it may think proportioned to the loss
resulting from such death to the parties respectively, for whom end for whose benefit such action
shall be brought; and the amount so recovered, after deducting all costs and expenses, including the
costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or
any of them, in such shares as the Court by its judgment or decree shall direct".
On analysis of the aforesaid section it is clear that to determine compensation the Tribunal has to
first find out the income of the deceased while he was alive. It must further find out as to what
portion out of this income he used to contribute or spend for his family.
The claim for compensation shall be only for the benefit of the family members, the representatives
of the person deceased. As the contribution by the deceased of a portion of his income for the benefit
of his family members could be made only during the life time the expectancy of living of the
deceased must be determined. In other words the Tribunal has to find put the span of life of the
deceased. This would depend upon various factors such as the age, the bodily health and the
possibility of premature determination of his life by later accidents. The 1855 Act is modelled on
Fatal Accidents Act as in force in the United Kingdom. A masterly exposition of law is given by
Viscount Simon in 1951 AC 601. (Nance v. British Columbia Electric Rly. Co. Ltd.). At page 615 his
Lordship observed thus:
"it is necessary first to estimate what was the deceased man's expectation of life if he had not been
killed when ho was; (let this be "x" years) and next what sums during these x years he would
probably have applied to the support of his wife. In fixing x, regard must be had not only to his age
and bodily health, but to the possibility of a premature determination of his life by a later accident.
In estimating future provision for his wife, the amounts he usually applied in this way before his
death are obviously relevant, and often the best evidence available; though not conclusive, since if he
had survived, his means might have expanded or shrunk, and his liberality might have grown or
wilted. In the present case it is known that in the years 1945-1948 which immediately preceded his
death, his "drawings" from his business averaged $ 2,600 per annum. His wife's maintenance was
derived from, and could not have exceeded these drawings. What proportion of such amount he in
fact contributed to her support is a matter of guess-work, but both his widow and her sister give him
a good character for generosity. He was a "good provider". Supposing, by this method an estimated
annual sum of $ y is arrived at as the sum which would have been applied for the benefit of the
plaintiff for x more years, the sum to be awarded is not simply $ y multiplied by x, because that sum
is a sum spread over a period of years and must be discounted so as to arrive at its equivalent in the
form of a lump sum payable at his death as damages. Then a deduction must therefore be made for
the benefit accruing to the widow from the acceleration of her interest in his estate on his death
intestate in 1949 (She came into $ 6.500 one-third of his estate, x years sooner than she would
otherwise have done) and of her interest in sums payable on a policy of $ 1,000 on his life; and a
further allowance must be made for a possibility which might have been realised if he had not been
killed but had embarked on his allotted span of x years, namely, the possibility that the wife might
have died before he did. And there is a further possibility to be allowed for -- though in most cases it
is incapable of evaluation -- namely, the possibility that in the events which have actually happened,
the widow might re-marry, in circumstances which would improve her financial position". This

decision was approved and followed in AIR 1962 SC 1. The same view has been taken in AIR 1966 SC
1750. (Municipal Corporation of Delhi v. Subhag-wanti); AIR 1970 SC 376, (C.K. Subra-monia Iyer
v. T.K. Nair); AIR 1971 SC 1624 (Sheikupura Transport Co. Ltd. v. Northern India Transporters
Insurance Co. Ltd.) & AIR 1967 Orissa 116, (Amulya Patnaik v. State of Orissa). It is not necessary to
refer to a large many decisions of the different High Courts in the same line.
9. In this case the factors to be taken into consideration for determining the quantum of
compensation are few. There is no evidence that the deceased had estate which his heirs would
inherit. The only features relevant for consideration in this case are the income of the deceased
while he was alive, his expectancy of living and the portion out of the income which he was spending
on account of the claimants. It is not disputed that the monthly income of the deceased was Rs.
283/-. The constituents of this Rs. 283/- were his pay and D. A. of Rs, 195/-, house-rent of Rs. 40/-
and children's allowance of Rs. 48/-. House-rent of Rs. 40/- and children's allowance of Rs. 48/-
were being definitely spent by the deceased for the members of the family. Out of the paltry amount
of Rs. 195/- as pay and D. A. the maximum that the deceased could spend for himself would be
estimated at Rs. 90/-. He is to be taken to be spending the balance of Rs. 105/- for the benefit of the
claim-ants. Thus, out of the total monthly income of Rs. 283/- the deceased is likely to have been
spending Rs. 193/- for the benefit of his family members.
The expectancy of life of the deceased has been estimated at 70 years; the deceased, however, died at
the age of 58 1/2 years. Accepting the expected span of life to be 70 years he had a further span of Hi
years. During this period he would have contributed Rs. 26,634/- at the rate of Rs. 193/- per month.
10. As has already been discussed, the claimants could not have been entitled to this lump sum if the
deceased had been alive. The sum to be awarded is to be spread over a period of years and must be
discounted so as to arrive at its equivalent in the form of a lump sum payable at the time of death as
damages. Ordinarily one-sixth of the total amount is deducted for fixing the lump sum (see 1970 Acc
CJ 84 (Punj), Rajinder Kaur v. Union of India), If l/6th is deducted. Rs. 26,634/- come to Rs.
22,195/-.
The determination of the question of compensation depends upon several imponderables. In

making such assessment there is likely to be a margin of error, Taking this margin of error into
consideration it would be just if the claimants are awarded a round sum of Rs. 21,000/-as
compensation.
11. The next question for consideration is how this liability would be apportioned between the owner
respondent No. II and the appellant.
Section 95 (2) of the Act runs thus "95(2). Subject to the proviso to Sub-section (l) a policy of
insurance shall cover any liability incurred in respect of any one accident up to the following limits
namely:--
(a) where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, including the
liabilities, if any, arising, under the Workmen's Compensation Act, 1923 in respect of the death of, or

bodily injury to employees (other than the driver), not exceeding six in number being carried in the
vehicle".
It is to be noted that Rs. 20,000/- has now been enhanced to Rs. 50,000/- in Act 56 of 1969. We are
however con-cerned with the limit of Rs. 20,000/- as it was prior to the amendment.
The vehicle being a goods vehicle the liability of the appellant is limited to Rs. 20,000/- under
Section 95 (2) (a). The language of Section is clear (see however 1970 Acc CJ 451 = (AIR 1971 Mad
143). Jayalakshmi v. Ruby General Ins. Co. Ltd. and AIR 1971 SC 1624.) Out of the compensation of
Rupees 21,000/- awarded against the owner S. Karam Slngh (respondent No. II) the appellant
would pay a sum of Rupees 20,000/-.
12. The last question for consideration is whether the claimants are entitled to any interest on the
compensation awarded. As has already been stated. Section 110-CC providing for award of interest
where any claim is allowed was incorporated into the statute by Act 56 of 1969 which was to be
effective from 2-3-1970. Prior to that there was no statutory provision for awarding interest. The
question for consideration is whether in the absence of positive statutory provision interest cannot
be awarded. No decision under the Act has been brought to our notice wherein this question was
discussed and a conclusion was reached one way or the other. Guidance must, therefore, be sought
from decisions under Other statutes where interest was granted on compensation awarded in the
absence Of statutory provision. AIR 1963 SC 1171, (The National Insurance Co. Ltd., Calcutta v. Life
Insurance Corporation of India) dealt with a case of grant of compensation under the Life Insurance
Corporation Act, 1956. Their Lordships allowed interest even in the absence of statutory provision.
They said that the Life Insurance Corporation Act and the Rules made thereunder do not contain
any express provisions for grant of interest on the delayed payment of compensation. The principle
applicable in respect of such a matter is that on entering possession the purchaser becomes entitled
to the rents but if he has not paid the price, interest in equity is deemed payable by him on the
purchase price which belongs to the seller. The claim for interest proceeds on the assumption that
when the owner of immovable property loses possession of it he is entitled to claim interest in place
of the right to retain possession.
In this case the claimants have been deprived of the compensation to which they were entitled from
the date of the award. If the compensation amount would have been paid forthwith they could have
deposited it in the bank and could have secured interest or could have utilised it much more
usefully. Applying the principles of natural justice, there is, therefore, no reason why they should be
deprived of interest. Similar view was taken in AIR 1967 SC 1030. (Firm Madanlal Roshanlal
Mahajan v. Hukumchand Mills Ltd. Indore) and AIR 1967 SC 1032, (Union of India v. Bungo Steel
Furniture (P) Ltd.) where interest was awarded under the Arbitration Act even in the absence of any
specific provision. The same view was also taken by this Court in (1971) 2 Cut WR 524, (State of
Orissa v. Govinda Choudhury).
On the aforesaid analysis we are satisfied that the claimants are entitled to interest. In view of the
fact that they made a fabulous claim which has been almost reduced to half and for that reason the
litigation was unnecessarily protracted, we would allow interest at 6% per annum from the date the

award was made by the Tribunal as was done in 1970 Ace CJ 189 = (AIR 1970 Madh Pra 172),
(Vinod Kumar Shrivastava v. Ved Mitra Vohra).
13. To sum up-
(i) The claimants are entitled to a compensation of Rs. 21,000/- out of which the appellant is liable
to pay Rs. 20,000/-
(ii) The compensation is payable with interest at 6 per cent per annum with effect from 15-10-1966
when the award was made by the Tribunal.
14. In the result the appeal is allowed in part as indicated above. As success is partial, parties are to
bear their own costs.
Acharya, J.
15. I agree.

S.P.M. Muthiah Chetti And Ors. vs Muthu K.R.A.R. Karuppan Chetti ... on 2 February, 1927
Madras High Court

Equivalent citations: (1927) 53 MLJ 606
Author: K Sastri
Bench: 1 W Plaint, H Voidable;, A T Defendant?
JUDGMENT Kumaraswami Sastri, J.
1. The plaintiffs are a firm of Nattukottai Chetties carrying-on banking business in Singapore and
other places. They allege in the plaint that they appointed the defendant as their agent to conduct
business in Singapore for a period of 3 years and as his conduct was found not to be satisfactory they
sent another agent after the expiry of the 3 years' period and wrote to the defendant to hand over the
business with the account books, documents and cash on hand to the new agent, that the defendant
refused to hand over charge of the business to the new agent until and unless the accounts between
him and the plaintiffs were settled and the letter containing the terms of the agency written by him
to the plaintiffs, called the salary chit, was returned to him and a release deed was executed in his
favour releasing him from all claims against him with reference to his agency, that as the defendant
was obdurate and as the plaintiffs feared that they might suffer heavy loss by the stoppage of
business they consented to authorise their new agent to give a release to him, that : the defendant
after getting the. release deed and the return of the salary chit handed over the account books,
vouchers and cash on hand to the new agent and that the release deed was obtained under coercion
and is : therefore voidable at their instance. They further allege that the defendant had improperly
debited them with the loss sustained by him in his own private transactions in dollars and that he
lent large sums of money without proper security and contrary to orders. The plaintiffs pray that the
release deed be declared void as having been obtained under coercion and that the defendant be
directed to render an account of the transactions during the period he was their agent. The
defendant in his written statement denies that the release deed was obtained under coercion and
avers that he acted honestly and diligently in his capacity as agent, that he did not wrongly debit the
plaintiffs with his losses, that he did not improperly lend money to the customers and that the
plaintiffs are estopped by their conduct from denying the validity of the release deed.
2. Two preliminary issues were framed by the Subordinate Judge:
(1) Whether the acquittance granted to the defendant was done under the circumstances detailed in
the plaint and hence voidable; and are the plaintiffs entitled to call for an account of the defendant?
(2) Whether the allegations in paragraphs 29 and 30 of the written statement are true, and does it
estop the plaintiffs from doing so?
3. The Subordinate Judge held that the release deed was obtained from the plaintiffs' agent under
coercion and that they did not ratify the release deed and directed an account to be taken. The
defendant has preferred this appeal.
4. The first question for decision is whether Ex. IV, the release deed, was obtained under coercion
and as such voidable at the instance of the plaintiffs. The admitted facts are : the plaintiffs appointed

the defendant as their agent to conduct their business at two places in Singapore and the defendant,
according to the custom obtaining among the Nattukottai Chetties, executed what is popularly
known as "salary chit" (Ex. K) on 4th March, 1918, setting out the terms on which he undertook to
work as the plaintiffs' agent. He went to Singapore and worked as their agent without any hitch till
the beginning of 1920. He did not send the kurippu for Masi corresponding to February-March,
1920, as he should have done about the beginning of Panguni. He sent the kurippu for Masi and
Panguni on the 3rd of Chitrai corresponding to the 15th of April, 1920. See Ex. H (2). He wrote to
the plaintiffs Ex. F on 24th May, 1920, making a special reference to the loss sustained in exchange
transactions and promising to make good the loss in some other transactions. The 1st plaintiff on
the receipt of Ex. F sent to the defendant the following-telegram (Ex. F-l) on 10th June, 1920:
Deal with money-lending; don't have other transactions, see letter and wrote Ex. F (2) on 12th June,
1920, charging the defendant with having debited them with losses sustained by him in exchange
transactions on his own private account and saying that if he had done the business for the firm he
would have taken their permission before embarking upon speculation in the exchange market. The
defendant continued to manage the plaintiffs' business at Singapore for more than a year after the
date of Ex. F (2).
5. The plaintiffs appointed another agent one Adaikalavan Chetty in the place of the defendant and
wrote to the defendant Ex. D-5 on 27th November, 1921 and informed him of their having sent
Adaikalavan Chetty to take charge of the business, that he should get the accounts prepared and
closed and that he should come away without delay. The following passage in the letter is important:
As soon as he arrives, get the accounts prepared and closed and come without delay.... If there is
something more to be collected, better get it collected and make out a copy of the items that can be
copied and come away after getting the accounts closed. If in both the said firms any items are not
collected and will have to be realised slowly, have them entered as old accounts and come away...
Please also intimate to me about the arrival of Adaikalavan Chetty there.
6. From this letter it is clear that the plaintiffs appointed a new agent and asked the defendant to
come away from Singapore; in other words, they asked him to cease to be their agent at Singapore as
soon as Adaikalavan Chetty went there and took charge of the business. The defendant did not hand
over charge to Adaikalavan Chetty and insisted upon the accounts being settled in Singapore
contrary to the custom prevailing among the Chettis and contrary to the terms of Ex. K and insisted
upon his being given a release deed in respect of any claim that the plaintiffs might make in respect
of any of the transactions conducted by him as agent. Ex. C written by Adaikalavan Chetty on 30th
December, 1921, to the plaintiffs shows the attitude of the defendant at the time. He writes:
When Muthiah Chetti was asked to prepare and give accounts in the order of dates, he said : 'I
cannot prepare and give account. I shall prepare the ayinthogai (balance sheet) as matters stand and
give the same. I should be relieved (of my duties) here and my salary chit should be given and the
account settled.

7. When he was told that it was not the proper course and that he might prepare and give the
accounts as matters stood and that the accounts might be settled on going to the headquarters as
usual he said definitely:
It cannot be done. My account should be settled here alone and I should be relieved of my duties.
8. Adaikalavan Chetty appealed to the defendant not to be obstinate and asked the other Nattukottai
Chetties to persuade him to hand over charge of the business to him with the account books, etc.
The friends of the defendant and the plaintiffs tried to induce the former to hand over the business
to Adaikalavan Chetty and to have the accounts settled at the Chetties' place in Madura. The
plaintiffs wrote Ex. D-2 on 5th January, 1922, complaining of his attitude as being "unusual, novel,
indecent and improper" and asking him without allowing the business to get spoiled to write up and
deliver the accounts and to let them know about it. The defendant wrote Ex. E-l on 19th January,
1922, to the plaintiffs in which he stated:
You should send my salary chit to Adaikalavan Chetty who has come here for the new account
together with a letter signed by yourself and P. L. Avergal and directing that the accounts,
documents, etc., of our shop and A. R. K. R. shop should be taken charge of in accordance with the
balance sheet, my salary account, etc., looked into and a receipt granted (to me) so as not to have
any further claim upon me.
9. The plaintiffs wrote Ex. D-3 on 1st February, 1922, complaining of his not having handed over the
account books to Adaikalavan Chetty who had been waiting there from 25th Karthigai and
informing him that as requested by him they had sent the salary chit to Adaikalavan Chetty and that
he should after getting the salary chit deliver to Adaikalavan Chetty the new account, the accounts
relating to the firm as well as the cash items, documents, box, packets, etc., and also execute the
necessary power, assignment and all other documents without any further delay. The defendant
insisted upon a release deed being executed in his favour before he could hand over the charge to
Adaikalavan Chetty. From Exs. D, C and E series it is clear that the plaintiffs found themselves in as
helpless state and reluctantly consented to do as the defendant wished. Ex. III written by the 2nd
plaintiff to the 1st plaintiff on 19th March, 1922, shows the state of the mind of the plaintiffs.
Adaikalavan Chetty strongly advised the plaintiffs to consent to give a release deed to the defendant
as otherwise the plaintiffs might sustain heavy loss owing to stoppage of business and that if so
advised they might take steps against him afterwards. Ex. IV was executed by Adaikalavan Chetty in
favour of the defendant on 21st April, 1922, whereupon the defendant handed over the account
books, cash, etc., to Adaikalavan Chetty.
10. The question is do the above facts make out that the defendant got the release, Ex. IV from the
plaintiffs under circumstances which amount to coercion. He was in possession of the documents,
account books and cash belonging to the plaintiffs. After he was asked to hand over charge to
Adaikalavan Chetty he had no right to withhold from the plaintiffs' new agent their property.
Adaikalavan Chetty remained there for about 4 months before he could get possession of the
account books, etc., in order to carry on the business. The stoppage of the business was likely to
cause heavy loss to the plaintiffs. Coercion is defined in Section 15 of the Contract Act, as

"committing, or threatening to commit, any act forbidden by the Indian Penal Code or the unlawful
detaining, or threatening to detain, any property to the prejudice of any person whatever, with the
intention of causing any person to enter into an agreement". The defendant, having withheld from
the plaintiffs their property which they asked to hand over to Adaikalavan Chetty, has brought
himself within Section 15 of the Contract Act, and the release deed he obtained under the
circumstances is voidable at the instance of the plaintiffs. We therefore agree with the Lower Court
in finding the first issue against the defendant.
11. It is unnecessary in this view to consider now the charges made by the plaintiffs against the
defendant of having debited the loss sustained in his own private transactions against the plaintiffs
in their accounts and of having lent large sums of money to impecunious customers. We may,
however, observe in passing that from the correspondence it is not at all clear that the plaintiffs
instructed the defendant not to dabble in exchange speculation. On the other hand the letters go to
show that some of the Chetty firms including the plaintiffs were speculating in exchange
transactions and the defendant also did business in dollars on behalf of the plaintiffs. As regards the
loan to one Tirupathi Chetty it is not suggested that the defendant acted with a corrupt motive; on
the other hand it is clear from the evidence that he lost about Rs. 18,000 the amount lent by him to
Tirupathi Chetty.
12. Issue II.--Though the defendant in para. 31 of his written statement uses the word 'estoppel',
what is pleaded is not an estoppel in the ordinary sense, but ratification of the arrangement under
Ex. IV. No doubt, even a ratification may amount to an estoppel; but it would be more correct to put
the question in the following form : whether the plaintiffs ratified the arrangement under Ex. IV;
and, if so, whether they could go behind it. After the execution of Ex. IV the account books, cash on
hand and the vouchers were handed over to Adaikalavan ' Chetty by the defendant and he executed
a power-of-attorney in Adaikalavan Chetty's favour so as to enable him to collect the loans
outstanding on mortgages. Adaikalavan Chetty died in August and the plaintiffs sent a third agent
named Arunachalam Chetty. It was necessary that Arunachalam should get a fresh
power-of-attorney from the defendant in order to realise the loans outstanding on mortgages. Ex. O
was written by the solicitors of the plaintiffs to Muthiah Chetti on 5th April, 1923, in which they
informed him of the death of Adaikalavan Chetty in August, 1922 and asked him whether he was
"willing to execute a fresh power-of-attorney in favour of the present agent to enable him to deal
with the mortgages and any other matters that may arise". The defendant's solicitors wrote Ex. Q on
13th April that their client had no objection to executing transfers of the mortgages in the names of
the proprietors meaning the plaintiffs and that before agreeing to do so he required the plaintiffs to
personally execute a release deed in his favour and that he was not satisfied with the release
executed by Adaikalavan Chetty in his favour. The plaintiffs' solicitors answered Ex. Q on 14th April
that everything had been done at the defendant's request and there was no reason why he should
require a fresh release and that their clients were unwilling to accede to that request. The
defendant's solicitors wrote to say that their client regretted that he could not see his way to execute
a transfer of the mortgages unless the proprietors personally executed a release in his favour. An
originating summons was then taken out by the plaintiffs' solicitors for a vesting order in respect of
the mortgages standing in the name of the defendant, and the vesting order Ex. V was made by the
Supreme Court of the Straits Settlements.

13. A difficulty arose as regards the mortgage property within the State of Johore as according to the
law of Johore a mere vesting order would not entitle the plaintiffs to sue on the mortgages obtained
in the name of their agent, the defendant. The plaintiffs' solicitors wrote to the defendant's solicitors
on 15th August, 1923:
We find that there are certain difficulties in connection with the making of a vesting order in Johore
and that it would therefore be necessary to sue for a declaration and an order to execute the transfer.
14. The defendant's solicitors replied:
that in view of the position he (the defendant) has taken up with regard to the Singapore property he
regrets he is unable to execute transfers of the mortgage properties in Johore, and that he will not
oppose any order in the action if they undertake not to ask for any costs.
15. The defendant seems to have changed his mind as is clear from the letter of the plaintiffs'
solicitors to his solicitors dated 24th September, 1923. He seems to have insisted that the counsel for
the plaintiffs should make a statement that the plaintiffs ratified the arrangement under Ex. IV
before he could undertake not to contest the claim and to facilitate the passing of a decree in
plaintiffs' favour. As a mere vesting order on originating summons would not satisfy the
requirements of the law obtaining in Johore the plaintiffs' solicitors filed Suit No. 817 of 1923 in the
Supreme Court of the Straits Settlements at Singapore praying for an order directing the defendant
to execute in the name of Moona Etana Toona Kana Roona Ahana Roona Moothiah Chetty in
manner conforming with the law in Johore such memoranda or other documents as may be
necessary according to the laws of Johore to transfer each of the said charges to the plaintiffs or
their present agent Moona Etana Toona Kana Ahana Roona Arunachalam Chetty, son of Annamalai
Chetty.
16. The defendant through his solicitors agreed to accept service of notice and the stipulation was
that the draft judgment should be approved by the defendant's solicitors. In accordance with the
arrangement the draft judgment was submitted to the defendant's solicitors as appears from the
correspondence printed on page 102 of the printed papers. The defendant's solicitors made certain
alterations and the plaintiffs' solicitors approved of the alterations. This was on 28th September,
1923. On 10th October, 1923 they sent the transfers in duplicate to the defendant's solicitors for his
signature. The plaintiffs' counsel ratified the arrangement under Ex. IV as appears from the order of
the Supreme Court of the Straits Settlements of Singapore, dated the 2nd October, 1923. The
relevant passage is as follows:
and the plaintiffs by their counsel acknowledging that the said release was and is in full force and of
full effect and by consent, it is this day adjudged and ordered by consent, that the defendant do
execute in the name of Moona Etana Toona Kana Roona Ahana Roona Muthiah Chetty.
17. The question is whether this statement amounts to a ratification of Ex. IV by the plaintiffs and
whether the plaintiffs are bound by the statement of their counsel that the release was and is in full
force and of full effect. The defendant knew or had reason to believe that the plaintiffs would

challenge the validity of Ex. IV and he evidently consulted his solicitors as to the best course to be
adopted and on their advice he insisted upon a second release deed from the plaintiffs failing which
upon a clear statement that the plaintiffs ratified the arrangement evidenced by Ex. IV. It is clear
from the correspondence that it was finally arranged that the defendant should not contest the suit
and that the plaintiffs' counsel should make a statement ratifying the release deed Ex. IV and that
the draft judgment should be approved by the defendant's solicitors and thereupon the plaintiffs'
counsel made the statement above extracted.
18. It is contended by Mr. Krishnaswami Aiyar for the plaintiffs that the counsel had no authority to
make the statement that "the plaintiffs acknowledge that the said release was and is in full force and
of full effect" and that it is for the defendant to show that the counsel was specially authorised to
make it. The Subordinate Judge has dealt with this point in an unsatisfactory manner. He observes
in para. 60:
From the correspondence to which I have referred above Ex. O series, it was seen that first
defendant wanted to have Ex. IV established by the execution of a fresh release deed by the
principals in person. That was not agreed to and the 1st defendant, I think, has been able to get
reference made to the release deed somehow and he holds that the admission contained in the
judgment does not affect the plaintiffs as an affirmance of the transaction of release.
19. That the plaintiffs' counsel made the statement contained in the order of the Supreme Court
cannot be seriously disputed. The only question is whether he had authority to bind his clients by
the statement he made. Mr. Krishnaswami Aiyar contended on the authority of Digbijoy Roy v.
Shaikh Ata Rahman (1911) 17 CWN 156, Nundo Lal Bose v. Nistarini Dassi (1900) ILR 27 C 428 (FB)
and Swinfen v. Swinfen (1856) 1 CBNS 364 : 140 ER 150, that the counsel had no authority to make
the statement and that the statement would not bind the plaintiffs. In Dig-bijoy Roy v. Shaikh Ata
Rahman (1911) 17 CWN 156 it was held that although a pleader has no power to compromise a suit
unless he is specially authorised in that behalf he can bind his client by an admission of a question of
fact provided that question of fact falls within the scope of the suit in which he has been retained. In
Nundo Lal Bose v. Nistarini Dassi (1900) ILR 27 C 428 (FB) the counsel retained in one case
consented to a compromise which affected other suits in which he was not retained. The
compromise was objected to and before the decree was drawn up one of the parties applied for an
order to stay the drawing up of the compromise decree and to have the alleged compromise set aside
and the suit retried. Stanley, J., dismissed the application; and on appeal Maclean, C.J., and two
other Judges allowed the application. The learned Chief justice observes at page 438:
There cannot, I think, be any reasonable doubt at the present day that counsel possesses a. general
authority--an apparent authority which must be taken to continue until notice be given to the other
side by the client that it has been determined--to settle and compromise the suit in which he is
actually retained as counsel, and in the exercise of his discretion to do that which he considers best
for the interest of his client in the conduct of the particular case in which he is so retained. Here,
however, the compromise extended to collateral matters, to matters quite outside the scope of the
particular case in which Mr. Mitter way retained as counsel, and, in order to bind the client, it must
be shown that Mr. Mitter had, from his client, a special authority to compromise, and compromise

upon the definite terms which are set up by the present respondents and refers to Strauss v. Francis
(1866) LR 1 QB 379, Swinfen v. Swinfen (1856) 1 CBNS 364 : 140 ER 150 and Matthews v. Munster
(1877) LR 20 QBD 141 for the authority of a counsel to compromise on behalf of his client. This case
is distinguishable on the facts. Here, there was no settlement of collateral matters. It was necessary
to prove to the Court that the mortgages which were standing in the name of the defendant were
taken for the benefit of the plaintiffs, that the defendant was a trustee of the plaintiffs and that the
agency having terminated he was bound to make over the mortgage deeds to the plaintiffs. It cannot
therefore be said that the ratification of the release deed, Ex. IV was a matter collateral to the
subject-matter of the suit in which the statement ratifying the deed was made. The defendant
insisted upon his being given a full discharge as regards the agency and he was not satisfied with the
release executed by the agent of the plaintiffs, and it was necessary for obtaining the order prayed
for to make out that the defendant . had ceased to be the plaintiffs' agent; and if for obtaining the
relief therein prayed the statement insisted upon by the defendant with reference to the agency
during the currency of which the mortgage deeds were obtained is made, it cannot be said that the
counsel settled a matter collateral to the suit. In Swinfen v. Swinfen (1856) l CBNS 364 : 140 ER 150
the power of a counsel for compromising matters in dispute was considered at length. These are
some observations of Crowder, J., which may be taken as lending support to Mr. Krishnaswami
Aiyar's contention. He observes at p. 461:
I am not aware that any counsel engaged in making terms ever supposed for a moment that his
opponent had power to bind his client without express instruction.
20. There are a number of cases which take a liberal view of the authority of a counsel to
compromise suits in which he is engaged. In Elworthy v. Bird (1824) Tamlyn 38 : 48 ER 16 Sir John
Leach, M. R., observes:
In the absence of evidence a Court will conclude that he had authority, for it is not to be presumed
that counsel would enter into an agreement without authority. There is in this case evidence on both
sides, but after duly considering it I come to the conclusion that counsel had authority which would
bind his client.
21. In B.N. Sen & Bros. v. Chuni Lal Dutt & Co. (1923) ILR 51 C 385 the plaintiffs instituted a suit for
the recovery of the price of goods sold and delivered to the defendants and for damages in respect of
goods, of which it was alleged the defendants had refused to take delivery, making a total claim of
Rs. 25,508. The defendants admitted that there was due from them to the plaintiffs a sum of Rs.
12,611 in respect of goods sold and delivered but claimed that there was due to them from the
plaintiffs a sum of Rs. 58,000 in respect of various transactions between the parties. At the hearing
of the suit the defendants' counsel in the absence of the defendants and without their express
authority assigned a decree in favour of the plaintiffs for Rs. 22,117, without prejudice to the right of
the defendants, if any, to proceed with their claim in their own suit. It was admitted that the
attorney for the defendants who was present in Court never asked the learned Counsel to settle the
suit, nor did he put any limitation on the authority or discretion of the learned Counsel in any
respect to compromise the suit. Sanderson, C. J, and Richardson, J., held that the settlement was a
matter within the apparent general authority of the counsel and was binding on the defendants. The

following observation of the learned Chief Justice may well be applied to the present case:
In my judgment there is no evidence in this case that there was any limitation placed upon the
authority of the learned Counsel.... I have a strong suspicion that the course which the learned
Counsel took on behalf of the defendants was a wise one, having regard to the nature of the suit and
the admissions which the defendants made in the suit. At all events I am satisfied that the
settlement was made within the authority of the learned Counsel.
22. There are numerous cases, English and Indian, on the question of a counsel's power to make
admissions in, or to refer to arbitration or compromise, suits in which he is instructed. A mere
reference to the following cases would be sufficient as it is neither profitable nor necessary to
consider them all in detail, Bhut Nasth Sircar v. Ram Lall Sircar (1900) 6 CWN 82 at 87, Swinfen v
Lord Chelmsford (1859) F & F 619 : 29 LJ Ex. 382, Chambers v. Mason (1858) 5 CBNS 59, Strauss v.
Francis (1866) LR 1 QB 379, Dwar Bux Sirkar v. Fatik Jali (1898) 3 CWN 222 and Berry v. Mullen
(1871) 5 IR 368 goes the length of laying down that the compromise made by a solicitor or counsel is
binding on the client though it may have been made against his express directions unless the client
has revoked the authority of the counsel or solicitor to compromise on his behalf and communicated
the revocation to the other side. This must be done before the decree or order is sealed.
23. The following propositions are deducible from the authorities:
(1) A counsel has authority to make admissions in Court on behalf of his client on matters of fact
relevant to the issues in the case in which he is engaged. Admissions on questions of law would not
bind the client.
(2) A counsel has authority to confess judgment, withdraw or compromise, or refer to arbitration the
suit in which he is instructed if his doing so is for his client's advantage or benefit even though he
has no express authority from his client.
(3) A counsel cannot without express authority agree to compromise or refer to arbitration matters
unconnected with the subject-matter of the suit in which he is instructed (4) Where in the course of
a suit a counsel makes an admission as to a collateral matter or gives up a doubtful claim which is
not a subject-matter of the suit, there is a presumption that the counsel acts under instructions if the
admission or the giving up of the doubtful claim is for the benefit of the client.
(5) It is a question of fact in each case whether the counsel acts under instructions when he
compromises or refers to arbitration matters not involved in the suit and the Court on a
consideration of the probabilities and the circumstances of the case can find that the counsel acted
on instructions even though there is no direct evidence on the point.
(6)A counsel has no power to make an admission in, or compromise or refer to arbitration, a suit if
he is instructed not to do so, without express authority from his client.

24. The plaintiffs were anxious to have the mortgage deeds in order to enforce the right under them
without delay as the fall in the price of rubber made the securities doubtful and they probably acted
upon the principle of the apothegm "a bird in the hand is worth two in the bush" and consented to
ratify the release deed and thereby secure the mortgage deeds without delay rather than pursue a
doubtful remedy against the defendant. All the circumstances of the case and the evidence on
record, the non-examination by the plaintiffs of their agent, Arunachalam, who instructed the
counsel in the proceedings before the Supreme Court of Straits Settlements, the absence of any
statement in the 2nd plaintiff's deposition that he or his brother, the 1st plaintiff, did not empower
Arunachalam to make the statement as to ratification contained in the judgment of the Supreme
Court of Singapore, the urgency with which the mortgage deeds were required by the plaintiffs and
the speedy manner in which the suit was decreed in plaintiffs' favour owing to the defendant's
consent to accept service and remain ex parte and the readiness with which the defendant executed
the transfer deed within a fortnight of the approval of the draft judgment by his solicitors lead to the
irresistible conclusion that the plaintiffs' counsel was specially authorised to make the statement
that the plaintiffs acknowledged that the said release was and is in full force and of full effect. Even if
the counsel was not specially instructed, to make the statement, we hold that the circumstances of
the case and the evidence on record fully justify the conclusion that he acted within his authority in
making the above statement. A decree has been passed embodying the statement by the Supreme
Court of Singapore and in pursuance of that decree the defendant signed the transfer deeds. But for
the statement the plaintiffs would not have got speedily, and in the manner they got, what they
wanted. We have therefore no hesitation in holding that the plaintiffs by their counsel ratified the
arrangement evidenced by Ex. TV and they cannot now sue to set it aside.
25. In the result, the appeal is allowed and the plaintiffs' suit dismissed. But considering the conduct
of the defendant we think he ought not to get his costs. We therefore direct that each party do bear
his costs throughout.
Devadoss, J.
26. I agree and have nothing useful to add.

Thakur Jagannath Baksh Singh vs Secretary Of State on 1 May, 1946
Bombay High Court

Equivalent citations: (1946) 48 BOMLR 467
Author: Wright
Bench: Macmillan, Wright, D Parcq, Morton, J Beaumont
JUDGMENT Wright, J.
1. The appellant, who is the taluqdar of Bhawanshahpur, brought his action in the Court of the Civil
Judge, Sultanpur, Oudh, claiming a declaration that the United Provinces Tenancy Act, 1939, is
either ultra vires or not intra vires of the Provincial Legislature, either in its entirety or at least as
regards the provisions, about 42 in number, scheduled to the complaint. His claim failed before the
Judge; he then appealed to the Federal Court of India, which dismissed the appeal but granted leave
to appeal to this Board.
2. The appellant is the direct descendant of Babu Sitla Baksh Singh, who was grantee of a sanad
from the Governor General after the Indian Mutiny of 1857. By this sanad the Crown granted to the
appellant's predecessor-in-title the full proprietary rights, the permanent heritable and transferable
rights in the ancestral estate which were confirmed by the Oudh Estates Act (No. 1 of 1869). That
Act contains entries of the name of the appellant's predecessor in lists I and II of the lists prepared
under Section 8 of the Act, the numbers of the entries being No. 241 and No. 108. List No. 1 contains
a list of all persons who are to be considered taluqdara within the meaning of the Act. The position
of the taluqdar is defined by Section 3 of the Act to be that he should be deemed to have thereby
acquired a permanent heritable and transferable right in the estate specified. The grant of the estate
was under Section 3 to be subject to all the conditions affecting the taluqdar contained in the orders
passed by the Governor General of India on October 10 and 19, 1859, and republished in the first
schedule annexed to the Act and subject also to all the conditions contained in the sanad under
which the estate was held. These letters are set out in full in Chhail Bihari Lal's book on the
Taluqdari Law of Oudh at p. 387 seq. It is enough here to quote the passage in the letter of October
19, 1859, which is specially relevant to the questions involved in this case. This passage, which is set
out in the judgment of Gwyer C.J., in the present appeal in the Federal Court, runs thus:-
The sanads declare that while, on the one hand, the Government has conferred on the taluqdars and
on their heirs for ever the full proprietary right in their respective estates, subject only to the
payment of the annual revenue that may be imposed from time to time, and to certain conditions of
loyalty and good service, on the other hand, all persons holding-an interest in the land under the
taluqdars will be secured in the possession of the subordinate rights, which they have heretofore
enjoyed. The meaning of this is that, when a regular settlement of the Province is made, wherever it
is found that zamindars or other persons have held an interest in the soil intermediate between the
raiyat and the taluqdar, the amount or proportion payable by the intermediate holder to the
taluqdar and the net jama finally payable by the taluqdar to the Government, will be fixed and
recorded after a careful and detailed survey and inquiry into each case, and will remain unchanged
during the currency of the settlement, the taluqdar being, of course, free to improve his income and
the value of his property by the reclamation of waste lands (unless in cases where usage has given
the liberty of reclamation to the zamindar), and by other measures of which he will receive the full

benefit at the end of the settlement. Where leases (pattas), are given to the subordinate zamindars,
they will be given by the taluqdar, not by the Government. This being the position in which the
taluqdars will be placed, they cannot, with any show of reason, complain if the Government takes
effectual steps to re-establish and maintain in subordination to them the former rights, as those
existed in 1855, of other persons whose connection with the soil is in many cases more intimate and
more ancient than theirs; and it is obvious that the only effectual protection, which the Government
can extend to these inferior holders, is to define and record their rights, and to limit the demand of
the taluqdar as against such person during the currency of the settlement to the amount fixed by the
Government as the basis of its own revenue demand.
3. The original sanad granted to the appellant's predecessor conferred the full proprietary right, title
and possession of the estate specified in the Kuboolyut, on the grantee and his heirs for ever, subject
to the payment of such annual revenue as might from time to time be imposed and to certain
conditions as to loyalty to the Crown. There was also a further condition that the grantee would so
far as is in his power promote the agricultural prosperity of the estate and that all persons holding
under him should be secured in the possession of all the subordinate; rights they formerly enjoyed.
As long as the above obligations were observed by the grantee and his heirs in good faith, so long
would the British Government maintain the grantee and his heirs in their position as proprietors of
the estate. The sanad was signed and sealed by George Udney Yule, Officiating Chief Commissioner
of Oudh.
4. It is not here necessary to trace in any detail the history of the land settlement in Oudh which
found its culmination in the measures referred to above. That history has been most completely and
accurately expounded in the judgment of Gwyer C.J. in the Federal Court in this case, which will
rank as the classic exposition of this important topic. It is enough to extract from the judgment a
single passage:
From these documents [namely, certain despatches and a letter which the Chief Justice refers to]
which are all on record and which we have not therefore thought it necessary to set out in full, it
appears that Lord Canning's first and main preoccupation was to secure the pacification of the
Province as speedily as possible; and this he did not feel able to do so long as the taluqdars and other
landholders continued to be bitterly opposed to him. He was not disposed to take too harsh a view of
their attitude during the Mutiny, since they had become subjects of the Crown only a few months
before it broke out and by the introduction of British rule many 'had suffered a loss of property and
all had experienced a diminution of the importance; and arbitrary power that they had hitherto
enjoyed.' He was disappointed that the proprietary village communities and the village zamindars
had not taken the side of the Government during the Mutiny in spite of the policy which had
instigated the first summary settlement in 1856. He had also begun to feel doubts about the views
held by Lord Dalhousie's Government on the subject of land tenures in Oudh; and he recognised
that many real injustices had been committed in the course of the settlement, which were calculated
to alienate the taluqdars still further, Lastly, he had the predilection of an English nobleman of his
generation for a territorial aristocracy of great families, who subject to safeguards and restrictions
which had been absent during the time of the nawabi, would form a stable and conservative element
in a Province henceforward at peace. The confiscation Proclamation was therefore only a means to

an end. It gave the Government a tabula rasa for the initiation of a new land policy. It enabled them
to restore dispossessed proprietors and thus enlist their sympathy and support, but also to remove
some of the more glaring evils of the former system. It enabled them to establish the taluqdars as a
powerful territorial aristocracy, but at the same time to recognise rights formerly enjoyed by
under-proprietors. It was in other words an important part of Lord Canning's policy of pacification;
and if the strict legal rights of individuals had to yield in some measure to more practical
considerations of administrative convenience and expediency, there can be no doubt that the
immediate effect was to bring peace and order to a distracted Province. And it may well be that even
those who suffered diminution in their legal rights have benefited in the long run by the restoration
of the rule of law and a more settled system of Government.
5. This being the general nature of the settlement embodied in the sanads and in the Oudh Estates
Act, 1869, it is now necessary to explain how the present dispute has arisen. In 1939 there was
enacted the United Provinces Tenancy Act, 1939. The preamble states " Whereas it is expedient to
consolidate and amend the law relating to agricultural tenancies and other matters connected
therewith in Agra and Oudh, it is hereby enacted as follows." The Act is an elaborate measure
consisting of 296 sections. Its general scope is sufficiently clear from the short title and preamble. It
regulates and secures the rights of the tenants in various respects on lines sufficiently familiar in
modern agricultural legislation. It is not contested that in doing so it impinges on the powers which,
but for such a measure, the taluqdars might have exercised within their estates. What is claimed by
the appellant is that the Act creates rights and interests in land in favour of other persons contrary
to the sanad granted to the appellant (or his predecessor) by the Crown and thus derogates from the
terms of the Crown grant, because it modifies or curtails the rights conferred by the Crown, It is not
necessary to examine in detail the particulars set out in the plaint, and it has been conceded on
behalf of the respondent that " some of the provisions ' of the Act do undoubtedly cut down the
absolute rights claimed by the taluqdars to be comprised in the grant of their estates as evidenced by
sanads such as we have set out above." Their Lordships take the terms of this concession from the
statement of its scope made by the Judges of the Federal Court and repeated before their Lordships.
That relieves their Lordships from a precise consideration of what may have been the exact
qualification of the taluqdars' rights embodied in the words of the sanad quoted above which aims at
the protection of subordinate holders of the land. It is enough for present purposes to observe that
some infringement of the rights of taluqdars under the sanad was in any event effected by the Act.
6. It is however clear that the claim put forward on behalf of the appellant is that the Court should
declare ultra vires and void an Act of a sovereign parliament such as that of Oudh. Under the
Government of India Act, 1935, the Provincial Legislatures (including that of the United Provinces)
are given exclusive power to make laws for the province or any part thereof with respect to the
matters enumerated in List II in the 7th schedule (s. 100 of the Act). Item 21 of List II enumerates as
matters within the exclusive competence of the Provincial Legislature " 21. Land, that is to say rights
in or over land, land tenures including the relation of landlord and tenant, and the collection of
rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural
loans; colonization; courts of wards; encumbered and attached estates; treasure trove." This
enumeration covers all the subjects dealt with in the Act of 1939. That Act was therefore within the
express powers of the legislature which passed it. " It must always be remembered," said Gwyer C.J.

in United Provinces v. Musammat Atiqa Begum [1941] F. L. J. 97, 115 " that within their own sphere
the powers of the Indian Legislatures are as large and ample as those of Parliament itself." It is
many centuries since the Courts were invited to hold that an Act of Parliament was ultra vires or
invalid in law on the ground that it infringed the prerogative of the Crown. So startling a claim as
that made in the present case cannot be upheld. That broad and general principle is sufficient to
dispose of the claim. No Court can annul the enactment of a legislative body acting within the
legitimate scope of its sovereign competence.
7. It is, however, desirable to examine the particular grounds on which it is sought to induce the
Court to arrive at this paradoxical conclusion. Some of these are said to be based on the general
principle of law that the Crown cannot derogate from its own grant, others are said to depend on
particular provisions of the Government of India Act.
8. It has not been possible for the appellant to adduce any authority for the principle involved, which
their Lordships apprehend to be that Parliament, whether Imperial, Federal or Provincial, in the
absence of express prohibition, is debarred from legislating so as to vary the effect of a Crown grant.
The appellant relies on certain express provisions of the Government of India Act. Thus he relies on
Section 299 of the Act, which provides that no person shall be deprived of his property in British
India save by authority of law, and that neither the Federal nor a Provincial Legislature shall have
power to make any law authorising the compulsory acquisition of land for public purposes save on
the basis of providing for the payment of compensation. But in the present case there is no question
of confiscatory legislation. To regulate the relations of landlard and tenant and thereby diminish
rights, hitherto exercised by the landlord in connection with his land, is different from compulsory
acquisition of the land. As to Sub-section (3) of Section 299 it was rightly decided by the Chief Court
that the provisions of the sub-section did not apply. That ruling was not questioned before or dealt
with by the Federal Court. Furthermore, in the view of that Court the questions involved in the
whole appeal were questions of legislative competence not merely of delay or precautionary
safeguards. Their Lordships agree with that view. They completely concur in the opinion of the
Federal Court that " if once it be found that the subject matter of a Crown grant is within the
competence of a Provincial Legislature nothing can prevent that Legislature from legislating about it
unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or
conditionally." The appellant finally contended on this point that a sufficient prohibition is found in
Section 300 (I) which provides that the executive authority of the Federation or a Province shall not
be exercised save on an order of the Governor-General or Governor, as the case may be, in the
exercise of his individual judgment, so as to derogate from any grant or confirmation of title of or to
land. It is, however, clear on the face of this sub-section that it is only dealing with executive action,
whereas here it is not executive authority which is in question but legislative competence and
authority and legislative action. These different categories, namely, executive order as distinguished
from legislative enactment, are so completely disparate and dissimilar that it does not seem
necessary to say any more on the point. Their Lordships are content simply to express their
agreement with the Chief Court and the Federal Court in rejecting the contention as irrelevant.
Section 50 (3) was also referred to in the course of the proceedings. But it is even more clearly
irrevelant than Section 300.

9. Support may be found (if support is needed) for the general proposition that the Crown cannot
deprive itself of its legislative authority by the mere fact that in the exercise of its prerogative it
makes a grant of land within the territory over which such legislative authority exists. So the
proposition is stated by Luxmoore J. in The North Charterland Exploration Company (1910) Ld. v.
The King [1931] 1 Ch. 169. In that case the Crown which made the grant was also the supreme
legislative authority in the Protectorate, but the two powers were separate and distinguishable.
Luxmoore J., at p. 186,. observed:
...the doctrine of derogation from grant cannot be applied in the case of a grant by the Crown so as
to deprive it of its paramount right (i.e., as the legislative authority] to legislate for the Protectorate
in which the subject of the grant is situate. To do so would be to place the Crown with reference to
any land granted by it in an inferior position to that occupied by other owners of land within the
same Protectorate.
No principle relevant to this case can be extracted from Burrard Power Company, Ltd. v. The King
[1911] A. C. 87, where it was held that the legislative competence there in question belonged to the
Dominion of Canada, not to the Province of British Columbia.
10. Their Lordships ought to refer in passing to the Crown Grants Act, 1895, of which Section 3 was
relied on by the appellant. That section runs, All provisions, restrictions, conditions and limitations
over contained in any such grant or transfer as aforesaid I i.e., one made by the Crown] shall be
valid and take effect according to their tenor, and rule of law, statute or enactment of the legislature
to the contrary notwithstanding.
11. These general words cannot be read in their apparent generality. The whole Act was intended to
settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be
read with reference to the general context and could not be construed to extend to the relations
between a sanad holder and his tenants. Still less could they be construed to limit the statutory
competence of the Provincial Legislature under the Constitution Act.
12. In conclusion their Lordships desire to quote with approval the language in which the Federal
Court sums up its view of the whole position:-
We desire however to point out that what they are now claiming is that no Legislature in India has
any right to alter the arrangements embodied in their sanads nearly a century ago; and, for all we
know, they would deny the right of Parliament itself to do so. We hope that no responsible
Legislature or Government would ever treat as of no account solemn pledges given by" their
predecessors; but the readjustment of rights and duties is an inevitable process, and one of the
functions of the Legislature in a modern State is to effect that re-adjustment, where circumstances
have made it necessary, with justice to all concerned. It is however not for this Court to pronounce
upon the wisdom or the justice, in the broader sense, of legislative acts; it can only say whether they
were validly enacted, and in the present case we are satisfied that neither the United Provinces
Tenancy Act, 1939, as a whole, nor any of those provisions of it which are set out in the schedule to
the plaint, are open to challenge on any of the grounds which have been argued before us.

13. Their Lordships will humbly advise His Majesty that in their opinion the appeal should be
dismissed.
14. The appellant will pay the costs of the appeal.
15. In dismissing the appeal their Lordships wish to make it clear that they express no opinion on
two points mentioned in the case but not argued before their Lordships, because neither party
desired to raise them. Both parties in this appeal wished to have a decision on the merits. The points
are (1) whether a suit lies under Section 42 of the Specific Relief Act for a declaration that a
provincial statute is ultra vires, and (2) whether an appeal will lie from the judgment of a single
Judge of a High Court when the judgment is appealable to a division bench of the same High Court.
In the circumstances of the particular case, their Lordships feel it is permissible to pass-over these
possible contentions without further comment, but their silence in that regard must not be taken to
indicate that they have tacitly accepted either of them.

Case Western Reserve Law Review
Volume 63 | Issue 1
2012
The Unbearable Lightness of Consent in Contract

Law
Chunlin Leonhard
Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev

Part of the Law Commons
Recommended Citation
Chunlin Leonhard, The Unbearable Lightness of Consent in Contract Law, 63 Case W. Res. L. Rev. 57 (2012)
Available at: https://scholarlycommons.law.case.edu/caselrev/vol63/iss1/9
This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons.
It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of
Law Scholarly Commons.
Case Western Reserve Law Review·Volume 63·Issue 1·2012
The Unbearable Lightness* of

Consent in Contract Law
Chunlin Leonhard †
Abstract
The consent concept has enjoyed a dominant position in contract
law. Scholars have described it as “the master concept that defines
the law of contracts in the United States.” 1 That makes intuitive
sense. Contracts are private agreements—a set of terms and
conditions to which the parties have consented. Some have pointed
out that the consent doctrine helps promote individual autonomy and
freedom of contract, core values protected by contract law. Consent
has served to legitimize and justify the government’s choice of sides in
a contractual relationship.
This Article queries whether consent alone is sufficient to justify
the government’s choice of sides in a private contractual relationship.
This Article contributes to the current scholarly discussion on the
problematic aspects of consent and proposes an alternative way to
evaluate when a court should use its coercive power to enforce a
contract. This Article proposes that contract law abandon its consent-
centric focus. The elasticity of the concept and its easy manipulability
render it an improper basis for state intervention. Instead, courts
should adopt a totality of circumstances standard to determine
whether government should exercise its coercive power to favor one
contractual party over the other.
* I thank Professor Steve Ramirez of Loyola University Chicago School of

Law for the title inspired by Milan Kundera’s book, The Unbearable
Lightness of Being. Milan Kundera, The Unbearable Lightness of
Being (Michael Henry Heim trans., Harper & Row, Publishers, Inc.
20th anniversary ed. 2004) (1984). In that book, Kundera explored the
concept of “lightness.” He described the insignificance of life as “light.”
As discussed in this Article, the consent concept, despite the ideal
imbued in it and the beauty of its appeal, is ultimately too “light” as
the justification for the government’s choice of sides in a private
contractual relationship.
† Chunlin Leonhard is an Associate Professor at Loyola University New
Orleans College of Law. I thank my colleagues at Loyola University New
Orleans College of Law for their support and their comments on the
earlier drafts of this Article. I also benefitted from comments by
participants in the 2011 CAPALF/NEPOC hosted by Hofstra
University School of Law between November 3 and 5, 2011. I thank my
research assistant Tina Campbell for her diligent help with this Article.
1. Peter H. Schuck, Rethinking Informed Consent, 103 Yale L.J. 899, 900
(1994).
57
The Unbearable Lightness of Consent in Contract Law
Contents
Introduction .................................................................................................... 58
I. Understanding Consent ....................................................................... 64
A. The Appeal of Consent .......................................................................... 64
B. The Meaning of Consent ....................................................................... 67
II. Consent and Contract Law ............................................................... 70
A. Consent and Contract Formation ......................................................... 70
B. Consent and Contract Defenses ............................................................ 73
C. Consent and Contract Interpretation .................................................... 75
D. Current Contract Law’s Enforcement of Contract Under Consent ....... 76
III. Problems with Contract Law’s Consent Focus ........................... 77
A. The Motivational Complexity of Consent .............................................. 78
B. Marketplace Manipulation of Consent ................................................... 79
C. The Growing Disconnect Between Consent and Commercial
Contract Practices ............................................................................... 81
D. Insufficiency of Current Contract Defenses .......................................... 82
E. Consent and Contract Law Goals ......................................................... 84
IV. Alternative to a Consent-Focused Approach .............................. 85
A. The Totality-of-the-Circumstances Test in Other Contexts .................. 86
B. The Totality-of-the-Circumstances Test for Contract Enforcement ...... 89
Conclusion........................................................................................................ 90
Introduction
“We use consent theory not as a map, not realizing that like
any other map it’s simpler than reality, but as a set of blinders
or rose-colored glasses that make the world look clearer, less
problematic, than it really is.” 2
The consent concept 3 has enjoyed a dominant position in contract

law. 4 Scholars have described it as “the master concept that defines
2. Don Herzog, Happy Slaves: A Critique of Consent Theory 247

(1989).
3. Many scholarly discussions of consent seem to conflate consent as an act
with consent as the central concept of a consent theory. The consent
theory portrays society as consisting of free, independent individuals who
control their own destiny and who are free to make their own choices. Id.
at 1. It is beyond the scope of this Article to explore the relationship be-
tween consent as an act and its role as a central concept of consent
theory. This Article focuses on consent as used in contract law. The
consent concept has been used or relied upon in different areas of law. It
has contributed to the discussion of the reasonableness of police searches.
See, e.g., United States v. Drayton, 536 U.S. 194, 206–08 (2002) (deter-
mining that a police search was reasonable when conducted after the
officers had approached the defendants on a bus and the defendants had
consented); see also Ric Simmons, Not “Voluntary”, but Still Reasonable:
A New Paradigm for Understanding the Consent Searches Doctrine, 80
Ind. L.J. 773 (2005) (discussing the consent doctrine in the context of
58
the law of contracts in the United States.” 5 That makes intuitive

sense. Contracts are private agreements—a set of terms and condi-
tions to which the parties have consented. 6 Some have pointed out
that the consent doctrine helps promote individual autonomy and
freedom of contract, core values to which contract law is committed. 7
After all, individual autonomy and freedom would not mean much if an
individual’s consent did not matter. Consent has morally justified and
legitimized government intervention in private contractual relationships. 8
This Article does not question the role of consent as the basis for
warrantless police searches). It has relieved some forms of criminal

liability, for example through the consent defense in rape cases. See, e.g.,
People v. Khan, 264 N.W.2d 360, 366 n.5 (Mich. Ct. App. 1978)
(“Although the [Michigan rape] statute is silent on the defense of consent,
. . . it impliedly comprehends that a willing, noncoerced act of sexual
intimacy or intercourse between persons of sufficient age . . . is not
criminal sexual conduct.”). It has shielded some from civil liability, and
imposed civil liability on some others. See, e.g., Tom W. Bell, Graduated
Consent in Contract and Tort Law: Toward a Theory of Justification, 61
Case W. Res. L. Rev. 17, 19–20, 23 (2010) (discussing the consent
defense to medical malpractice liability, as embedded in the tort law de-
fense of assumption of risk, and consent as the basis for contract liability).
4. See Randy E. Barnett, A Consent Theory of Contract, 86 Colum. L.
Rev. 269, 270 (1986) (proposing that “[a] consent theory of contract
explains why we generally take an ‘objective’ approach to contractual
intent and why we deviate from this approach in some situations” and
that “[c]onsent is the moral component that distinguishes valid from
invalid transfers of alienable rights”); see also Menachem Mautner,
Contract, Culture, Compulsion, or: What is so Problematic in the
Application of Objective Standards in Contract Law? 3 Theoretical
Inquiries L. 545, 551 (2002) (indicating that an objective “reasonable
person” approach to contracts “evolved into one of the most entrenched
dogmas of contract law”).
5. Schuck, supra note 1, at 900; see also Bell, supra note 3, at 36
(providing examples indicating the importance of consent to contract
law).
6. See Clare Dalton, An Essay in the Deconstruction of Contract Doctrine,
94 Yale L.J. 997, 1010 (1985) (discussing the notion that contracts are
“private” and controlled by the parties).
7. See Michael J. Trebilcock, The Limits of Freedom of Contract
8–9 (1993) (examining the political justification for “private ordering”);
Peter A. Alces, Contract Reconceived, 96 Nw. U. L. Rev. 39, 42 (2001)
(explaining that consent is “vindicated by . . . individual autonomy”);
Robin West, Authority, Autonomy, and Choice: The Role of Consent in
the Moral and Political Visions of Franz Kafka and Richard Posner, 99
Harv. L. Rev. 384, 384 (1985) (discussing commitment to individual
autonomy).
8. Barnett, supra note 4, at 304–05.
59
a moral obligation to keep one’s promise. 9 It queries whether the

government should primarily rely on consent to justify its decision to
side with one private party over another. Contract law’s consent focus
is increasingly problematic due to multiple factors. To begin with,
consent is an amorphous, difficult-to-define concept that is made in-
creasingly more difficult by the marketplace manipulations of human
decision making biases. 10 Is it consent simply because someone signed
an agreement? Is it consent if a person signed an agreement without
having all the information or without understanding the available
information? Is it consent if someone signed an agreement, but
unbeknownst to her, the agreement was carefully designed to induce
her to sign the agreement? 11
With the advent of the “age of persuasion,” 12 defining consent and
ascertaining its existence have become even more difficult, if not
9. This Article also does not participate in a debate about the importance
or necessity of consent to legitimate government. For an interesting
discussion on this topic see Ilya Somin, Revitalizing Consent, 23 Harv.
J.L. & Pub. Pol’y 753 (2000). This Article merely questions contract
law’s reliance on consent as a justification for contract enforcement.
10. See Margaret Jane Radin, Humans, Computers, and Binding
Commitment, 75 Ind. L.J. 1125, 1125 (2000) (pointing out that consent
is a “fuzzy and contested” concept). One could argue that the problem
with consent is not a matter of definition, but rather an issue about
what standard to use to ascertain its existence. The meaning of consent
is practically limited by the standards used to ascertain its existence.
For example, if one adopts the objective standard to ascertain whether a
party has consented by looking at the outward manifestation of consent,
the consent as ascertained would mean apparent consent without regard
to whether truly voluntary consent existed. On the other hand, if one
defines consent as voluntarily arising out of one’s free will, the objective
standard is not up to the task of ascertaining the existence of consent as
defined. This Article treats the problem related to consent both as an
issue of definition and standard. Part of the problem with the concept is
defining how voluntary consent must be in order to qualify as consent
that pays tribute to the core values of contract law—individual
autonomy and freedom of contract. See Trebilcock, supra note 7, at
127 (“From an autonomy perspective, where choices are made on the
basis of critically defective information, at some point such choices
presumably cease to satisfy the conditions for an autonomous choice.”).
11. See, e.g., Silver v. Countrywide Home Loans, Inc., 760 F. Supp. 2d
1330, 1337 (S.D. Fla. 2011) (examining a situation where a plaintiff
alleged that a lender “engaged in ‘bait and switch’ tactics whereby [the
lender] induced her into applying for a mortgage with promises of low
interest rates, low monthly payments and a fixed interest rate, but then
changed the terms of the mortgage at closing”).
12. I borrowed the phrase from the title of a book written by Terry O’Reilly
and Mike Tennant. Terry O’Reilly & Mike Tennant, The Age of
Persuasion (2009). O’Reilly and Tennant also created “The Age of
Persuasion” radio show, broadcast by the Canadian Broadcasting
Corporation and Sirius Radio.
60
impossible. Behavioral studies during the last few decades have

provided a more in-depth understanding of human decision-making
processes, including predictable biases. 13 Relying on those insights,
powerful commercial forces have deliberately manipulated people’s
decisions. 14 Those unprecedented marketplace phenomena have raised
some thorny issues for contract law. These days, voluntary consent
may not exist even when all of the traditional indicia of consent exist.
People could have signed an agreement and intended to enter into
certain transactions and yet there might not be actual “consent.” An
outward manifestation of consent does not necessarily equal the
knowledge required for meaningful consent.
An example of such marketplace manipulation is the subprime
mortgage transactions that caused the current financial crisis. Studies
showed that lenders deliberately designed mortgage products so that
they appeared more affordable to borrowers than they actually were. 15
When the borrowers signed the mortgage agreements, does their
“consent” justify the government’s choice to side with the lenders?
Courts have generally answered the question affirmatively in the
litigation arising out of subprime mortgage crisis. 16
13. See Daniel Kahneman, Thinking, Fast and Slow 8–10 (2011)
(tracing the studies that Kahneman and his colleagues conducted since
the 1970s that eventually uncovered many human decision biases that
undermine the generally accepted notion that human beings are rational).
14. A Federal Trade Commission study found that fourty-four reporting
companies in 2006 spent a total of $9.6 billion to market food and
beverages. Fed. Trade Comm’n, Marketing Food to Children
and Adolescents: A Review of Industry Expenditures,
Activities, and Self-Regulation ES-2 (2008), available at
http://ftc.gov/os/2008/07/P064504foodmktingreport.pdf. When a per-
son reaches for a can of Coke, how much of that decision is made by the
person? How much of that decision is attributed to the unrelenting TV
commercials promoting Coke products the person has seen? See Oren
Bar-Gill, The Law, Economics and Psychology of Subprime Mortgage
Contracts, 94 Cornell L. Rev. 1073, 1079–80 (2009) (arguing that the
subprime mortgage crisis was caused by lenders pushing “risky credit
onto borrowers who were incapable of repaying” because the borrowers
had “imperfect rationality”); Alan M. White, Behavior and Contract, 27
L. & Inequality 135, 158–160 (2009) (pointing out that the marketing
industry spend billions of dollars on behavioral research to devise
marketing strategies which can increase sales).
15. See, e.g., Bar-Gill, supra note 14, at 1080 (“[L]enders willingly catered
to borrowers’ imperfectly rational demand even when the demanded
product designs increased the default risk borne by lenders.”).
16. See, e.g., Silver, 760 F. Supp. 2d at 1334 (granting defendants’ summary
judgment motion on all of plaintiff borrower’s claims including
contractual claims for breach of contract and breach of the implied
covenant of good faith and fair dealing); see also Caraang v. PNC
Mortg., 795 F. Supp. 2d 1098 (D. Haw. 2011) (dismissing plaintiff
borrowers’ claim for breach of the duty of good faith because a party
61
Because of the ease with which “consent” can be manipulated,

contract law’s consent focus will inevitably lead the courts to use the
coercive power of the state to favor the more powerful party in an eco-
nomic relationship. 17 The party with more bargaining power, resources,
and better access to information is in a better position to manipulate.
Some scholars have identified the problems with contract law’s
commitment to consent. 18 Some have identified defects related to
consent in the area of standard form contracts 19 and cyberspace
contracts. 20 Professor Radin, in her article Humans, Computers and
cannot breach a covenant of good faith and fair dealing before a

contract is formed); Finuliar v. BAC Home Loans Servicing, L.P, No.
C-11-02629 JCS, 2011 WL 4405659 (N.D. Cal. Sept. 21, 2011) (dismiss-
ing the plaintiff’s claim for breach of the implied covenant of good faith
and fair dealing because plaintiff failed to identify a specific contractual
provision as a basis for the claim); Perez v. Wells Fargo Bank, N.A.,
No. C-11-02279 JCS, 2011 WL 3809808 (N.D. Cal. Aug. 29, 2011) (dis-
missing the borrowers’ contract claims because the plaintiffs failed to
identify any specific contractual provisions that were breached or
frustrated); Heaton v. Bank of Am. Corp., No. 10-12394, 2011 WL
3112325 (E.D. Mich. July 26, 2011) (dismissing plaintiff claim because
the plaintiff alleged nothing more than an ordinary business relationship
between the plaintiff and defendant); Park v. Wachovia Mortg., FSB,
No. 10CV1547-WQH-RBB, 2011 WL 98408 (S.D. Cal. Jan. 12, 2011)
(dismissing all of the plaintiff borrowers’ claims including claims for
breach of good faith and fair dealing and unconscionability because the
complaint failed to sufficiently allege terms of contract to which the
covenant could attach). It is not hard to imagine that some borrowers
did not even assert any contractual claims, probably recognizing the
futility of attempting such a claim under contract law.
17. “Enforcement, in fact, puts the machinery of the law in the service of
one party against the other. When that is worthwhile and how that
should be done are important questions of public policy.” Morris R.
Cohen, The Basis of Contract, 46 Harv. L. Rev. 553, 562 (1933).
18. See, e.g., Trebilcock, supra note 7, at 126 (pointing out that “it is
difficult, if not impossible, to resolve most problems of information
asymmetry within the framework of an internal theory of contract
premised on consensually assumed obligations”); see also Peter A. Alces,
Guerrilla Terms, 56 Emory L.J. 1511, 1514 (2007) (discussing issues
raised by the reality of standard form contracts and finding it
“appropriate to question the role and operation of doctrine that has
strayed too far from the substantial, real bargain and agreement, to the
insubstantial, indeed aleatory, inference of consent”); Radin, supra note
10, at 1125–28 (questioning contract law’s commitment to consent in the
face of commercial computer-contracting practices); West, supra note 7,
at 428 (arguing that “consent itself” does not best promote autonomy).
19. See, e.g., Edith R. Warkentine, Beyond Unconscionability: The Case for
Using “Knowing Assent” as the Basis for Analyzing Unbargained-for
Terms in Standard Form Contracts, 31 Seattle U. L. Rev. 469, 500–
02 (2008) (discussing how the “rolling contract theory” is defective when
weighed against more modern approaches to contract theory).
20. Radin, supra note 10, at 1128–29.
62
Binding Commitments, raised some thoughtful questions about the

consent-based approach. 21 She examined commercial practices in
online computer contracting and queried whether “the move online
exacerbate[s] the disjuncture between the consent-based picture and
the reality of transactions.” 22
So far, contract law has addressed the defects related to consent
through a patchwork of contract defenses and doctrines such as
unconscionability. 23 Courts’ analyses of contract law issues have
generally not deviated from the consent-centric approach. 24 Continued
reliance on consent will lead to a deeper disconnect between contract
law and marketplace realities. 25 This Article suggests an alternative
approach that attempts to untether the contract law analysis from the
traditional consent focus. 26
To provide a context for the discussion, Part I of this Article draws
on the findings of behavioral studies to explain why our society seems
to be so enthralled by the consent concept. It also attempts to clarify
the meaning of consent. Part II examines contract law doctrines
designed to ascertain the existence of consent and those doctrines’
limitations. Part III of the Article identifies some problems with relying
on the consent doctrine as a lynchpin for enforcement. Finally, Part IV
21. Id. at 1125.

22. Id. at 1126.
23. See infra Part III.D.
24. See cases cited supra note 16.
25. As this Article is being drafted, the Occupy Wall Street Movement is
spreading throughout different cities in the United States. The
organization’s website describes itself as a “leaderless resistance
movement with people of many colors, genders and political persuasions.
The one thing we all have in common is that We Are The 99% that will
no longer tolerate the greed and corruption of the 1%. We are using the
revolutionary Arab Spring tactic to achieve our ends and encourage the
use of nonviolence to maximize the safety of all participants.” Occupy
Wall Street, http://occupywallst.org (last visited Sept. 22, 2012).
26. This proposal reflects not a dislike of the consent concept or all the ideals
associated with it, but rather a realization of the difficulty, if not the
impossibility, of determining the existence of consent. The elasticity of the
concept and its easy manipulability renders it an improper basis for state
intervention. This Article does not argue that an individual’s consent should
not matter. Indeed, in an ideal world, if an individual’s consent is a result of
equal bargaining power with equal access to information and full
comprehension and adequate tools exist to ascertain its existence, an
individual’s consent would be adequate to justify government enforcement
of the promise. The problem is that we do not live in an ideal world: the
appearance of consent can be easily manipulated and powerful commercial
forces are manipulating human decision making biases to achieve the
appearance of consent. The consent-focused inquiry distracts courts from
more important considerations of fairness.
63
of this Article proposes that courts apply a totality of circumstances

standard to determine on whose behalf the government should exercise
its coercive power in a contractual relationship.
I. Understanding Consent
Why are we so enthralled by the consent concept? What explains its
iconic status in contract law? What exactly does consent mean? What
kind of consent reflects the core values of individual autonomy and
freedom of contract? This Part offers some thoughts on these questions.
A. The Appeal of Consent
The consent concept has strong emotional appeal in our society
because we as a society pride ourselves on individual autonomy and
freedom. 27 The concept belongs to the basket of core ideas that
underlie the American Dream. 28 The central idea of the American
Dream is that we are in control of our own destiny. It has been
described as “the creed of the rugged individualist—a belief that
anyone who works hard can succeed. . . . As free agents in a free
society, we would all have equal access to economic opportunity.” 29
The consent concept is thus consonant with the ideal image that
we would like to have. 30 It gives us a comforting narrative about
ourselves. Humans have a strong need for coherence. 31 We are free and
27. See Herzog, supra note 2, at 215 (clarifying that the author is not
arguing that “consent theory has outlived its usefulness” because we are
“still in large part a world of masterless men”); Bell, supra note 3, at 29
(using human autonomy to argue that “aretaic moral philosophies
should value consent as a necessary constituent of human flourishing”).
28. See Rick Steves, A United Europe in the 21st Century: Eclipsing the
American Dream?, Rick Steves’ Eur., http://www.ricksteves.com/
about/pressroom/activism/eurodream.htm (last visited Sept. 22, 2012)
(claiming that“[t]he American Dream emphasizes autonomy, national
pride, and material wealth”). Pop literature also promotes the message
that the individual alone is responsible for his or her own fate. See
Barbara Ehrenreich, Bait and Switch 81 (2005) (quoting from a
“pop-psych fad” book and indicating that “[i]t’s a long-standing American
idea . . . that circumstances count for nothing compared to the power of
the individual will”).
29. Steves, supra note 28.
30. Upon this concept was born an entire consent theory. Don Herzog
described this “familiar figure” that “haunts modern society” as “the
free agent, bound only by his own choices. He chooses a career, a
spouse, a religion, a lifestyle, and more. He animates our moral and
political arguments, our very idea of what a person is, and our social
lives.” Herzog, supra note 2, at ix.
31. Nobel Prize–winning psychologist Daniel Kahneman wrote extensively
about the human need for coherence in his recent book, Thinking, Fast
and Slow. Kahneman, supra note 13, at 79–88.
64
independent and we control our own destiny. 32 We are free to agree or

not to agree, to consent or not to consent because we alone can define
our relationships with others. 33 Respect for consent means respect for
our individualism and autonomy. 34
Contract law naturally embraces the consent concept as the
lynchpin for enforcement of promises. This is an easy story to tell
and sell. 35 Indeed, one could argue that the danger of the consent
concept (and its ability to do mischief) lies in its strong appeal and
coherence. Because of its appeal, there is no ready constituent to
expose its potential to do mischief. There is little political will to
save people from themselves.
The alternative narrative, which unfortunately more closely
resembles reality, is a more difficult story, as behavioral economists
have shown. 36 We are not really free. 37 We have multiple obligations
to family, friends, superiors, and various affiliated groups. 38 Our
32. See Richard W. Garnett, Why Informed Consent? Human Experimenta-

tion and the Ethics of Autonomy, 36 Cath. Law. 455, 461 (1996)
(“Both the legitimating and justifying faces of consent purportedly
embody and advance notions of freedom and autonomy.”). Some have
pointed out that the concept of consent and the related concept of
individualism have contributed to the success of this country. It
motivated people to do their best because of a strong belief in
themselves. Steves, supra note 28. While the consent concept can do
good, we need to be mindful of its ability to do harm when used as a
basis for government intervention.
33. Schuck, supra note 1, at 900–01.
34. Garnett, supra note 32, at 489.
35. This message is repeated in many popular literature and self-help books.
E.g., Ehrenreich, supra note 28, at 81–82. The consent concept is also
consistent with America’s historical distrust of government and provides
a ready justification for keeping the government out of people’s private
economic relationships. See Daniel B. Klein, 3 Libertarian Essays
30 (1998) (“Where people distrust government, they choose politically to
have much liberty . . . .”).
36. See Kahneman, supra note 13, at 128 (pointing out that human
decision-making biases, such as priming effect, “threaten the subjective
sense of agency and autonomy”).
37. See Dan Ariely, Predictably Irrational 321 (First Harper
Perennial ed. 2010) (“[W]e are pawns in a game whose forces we largely
fail to comprehend. We usually think of ourselves as sitting in the
driver’s seat, with ultimate control over the decisions we make and the
direction our life takes; but, alas, this perception has more to do with
our desires—with how we want to view ourselves—than with reality.”).
38. See Garnett, supra note 32, at 509 (“We are not simply ‘choosers,’ as
the ethic of autonomy and consent posits. We are members, friends, and
loved ones as well.”).
65
choices can be easily swayed. 39 We often make decisions not based on

best evidence and we are distracted by secondary considerations. 40
Our flaws are so predictable that we can be easily manipulated. 41
When we agree to do certain things, it may be due to multiple
reasons that may not reflect our free will. 42 Our decisions may reflect
our environment and other external factors. 43 In reality, we make very
few decisions free of outside influences. 44
Faced with the ideal and the real, we embrace the ideal whole-
heartedly. Indeed any challenge to the consent doctrine could risk being
viewed as advocating for irresponsible behavior. How can anyone argue
that someone should not be held accountable for what they have agreed
to do‽ 45 The consent concept is in essence part of our identity.
39. See Kahneman, supra note 13, at 140 (describing psychologist Paul
Slovic’s work, which shows that human judgment is guided more by
emotions than reasons and is easily influenced by multiple factors).
40. See id. at 128 (describing the influence of priming effects, “in which
your thoughts and behavior may be influenced by stimuli to which you
pay no attention at all, and even by stimuli of which you are completely
unaware”). Studies have shown that people do not necessarily act to
maximize their economic interests. See Michael Shermer, The Mind
of the Market 176 (2008) (“[E]xtremely low ultimatum game offers
are usually rejected—we are willing to forgo gain in order to prevent
another from receiving an unjust award. That is, we’ll pay to punish
fair-trade transgressors.”); Christine Jolls et al., A Behavioral Approach
to Law and Economics, 50 Stan. L. Rev. 1471, 1492 (1998) (“People
will often behave in accordance with fairness considerations even when
it is against their financial self-interest and no one will know.”).
41. See Ariely, supra note 37, at 317 (“[W]e are all far less rational in our
decision making than standard economic theory assumes. Our irrational
behaviors are neither random nor senseless—they are systematic and
predictable.").
42. See Kahneman, supra note 13, at 128 (“[O]ur thoughts and our
behavior are influenced, much more than we know or want, by the
environment of the moment”).
43. For example, Professor West pointed out that the characters portrayed
in Kafka’s world seem to better resemble human reality than the
rational being portrayed in Professor Posner’s world. See West, supra
note 7, at 427 (“Our subjective experiences of the consensual
transactions we enter do not accord with Posner’s external descriptions
of those transactions.”).
44. See Kahneman, supra note 13, at 119–28 (discussing the anchoring
effect’s influence on choices); id. at 129–35 (discussing studies that show
how people’s decisions are affected by availability bias).
45. I cannot help but be a little defensive myself. This Article does not argue
that people should not be held accountable. Instead, this Article advocates
for an alternative basis to hold people accountable when the coercive
power of the state is invoked. When people’s “consent” no longer reflects
their free will, something more than “consent” is necessary to justify the
state’s use of coercive power in favor of one party.
66
B. The Meaning of Consent

What does consent mean? Webster’s II New College Dictionary
defines consent when used as a noun as “[v]oluntary allowance of
what is planned or done by another.” 46 The dictionary further defines
“voluntary” as “[a]rising from one’s own free will.” 47
This definition raises some questions. How voluntary does a
person’s decision have to be before that decision counts as consent
within the meaning of an autonomous choice? 48 Is it “voluntary” if
one does not have the necessary information to make the decision? Is
it “voluntary” if one makes a choice without being aware that
someone manipulated the information?
A survey of consent scholarship shows general agreement that
certain prerequisites must exist before consent can reflect autonomous
choices. 49 Scholars have identified what they call “informed consent”
as consent that reflects an individual’s autonomy. 50 Under the
informed consent analysis, in order to give consent, one needs volition
(the power to use one’s will), information, and comprehension. 51
The volition requirement of consent “requires conditions free of
coercion and undue influence.” 52 Coercion occurs when one person
threatens to harm the other person in order to obtain consent. 53
“Undue influence, by contrast, occurs through an offer of an excessive,
unwarranted, inappropriate or improper reward or other overture in
order to obtain compliance.” 54 Additionally, “inducements that would
46. Webster’s II New College Dictionary 245 (3d ed. 2005).

47. Id. at 1267.
48. See Trebilcock, supra note 7, at 127 (“From an autonomy perspective,
where choices are made on the basis of critically defective information,
at some point such choices presumably cease to satisfy the conditions for
an autonomous choice.”).
49. See, e.g., id. at 102 (emphasizing that “[e]ven the most committed
proponents of free markets and freedom of contract recognize that
certain information preconditions must be met for a given exchange” to
be efficient).
50. Julia A. Pedroni & Kenneth D. Pimple, A Brief Introduction to
Informed Consent in Research with Human Subjects 4–5 (2001).
51. Nat’l Comm’n for the Prot. of Human Subjects of Biomedical
& Behavioral Research, The Belmont Report: Ethical Princi-
ples and Guidelines for the Protection of Human Subjects of
Research 10–14 (1978) [hereinafter Belmont Report].
52. Id. at 14.
53. Id.
54. Id.; see also Odorizzi v. Bloomfield Sch. Dist., 54 Cal. Rptr. 533, 539
(Ct. App. 1966) (“[A] person’s will may be overborne without
misrepresentation.”).
67
ordinarily be acceptable may become undue influences if the subject is

especially vulnerable.” 55
The next requirement of informed consent requires access to
information. 56 Even when one has the will to become informed, one
needs to have the necessary information. If one cannot have physical
access to information, one cannot evaluate all the options. 57 Consent
based on limited information cannot be consent that promotes
individual autonomy and freedom of contract. 58
Furthermore, mere physical possession of information without
comprehension will not result in consent, either. 59 Comprehension is
thus an important requirement for meaningful consent. The ability to
understand depends on intelligence, rationality, maturity, and
language. 60 Comprehension is influenced by internal constraints such
as cognitive ability and decision-making biases and external
constraints such as cultural biases and marketplace manipulations. 61
Let us consider the following consent scenarios against the
backdrop of the informed consent discussion. 62
1. Party B had all the information and understood all the infor-
mation. Party B carefully weighed all of his options by
considering the costs and benefits of each option. Party B was
in a position to negotiate with Party A. After negotiating with
Party A on several issues, Party B signed the agreement.
55. Belmont Report, supra note 51, at 14. A California court described
undue influence as “a shorthand legal phrase used to describe persuasion
which tends to be coercive in nature, persuasion which overcomes the
will without convincing the judgment.” Odorizzi, 54 Cal. Rptr. at 539.
As the court later acknowledged, “[t]he difficulty, of course, lies in
determining when the forces of persuasion have overflowed their normal
banks and become oppressive flood waters.” Id. at 541. Product
advertising influences people’s decisions, but it is tolerated, and most
would agree that it does not rise to the level of undue influence.
56. Belmont Report, supra note 51, at 11–12.
57. Pedroni & Pimple, supra note 50, at 5–6.
58. Id. at 6.
59. Id.
60. Belmont Report, supra note 51, at 12.
61. See id. at 13 (explaining that “[s]pecial provision[s]” might need to be
made for those with impaired cognitive abilities such as mental
disability).
62. This is a crude attempt to categorize certain situations implicating
consent analysis for the sake of articulating the issues raised by contract
law’s focus on consent. Some of the examples are derived from actual
court cases, summarized and abbreviated to highlight the defect with
consent.
68
2. Party B had all the information and thought that he under-

stood everything, but unbeknownst to him, Party A had delib-
erately designed and presented the options to lead Party B to
the option preferred by Party A. Party A’s options were de-
signed to exploit human decision-making biases identified by
behavioral studies. Party B chose the predicted option and
signed the agreement.
3. Party B had all the information and understood the infor-

mation. However, Party B was not in a position to negotiate
and had no alternatives anyway. Party B signed the agreement.
4. Party B had all the information, but Party B did not under-
stand the information or Party B did not bother to read the
agreement. Nonetheless, Party B signed the agreement.
5. Party A failed to disclose a material fact to Party B. Party B

signed the agreement.
6. Party A misrepresented a material fact. Relying on the misrep-

resentation, Party B signed the agreement.
7. Party B was confined in a cast in a hospital. Party A spent two

hours persuading Party B to sign an agreement to release claims
for personal injuries in exchange for a relatively small sum. At
the time of signing, Party B was in a highly nervous and
hysterical condition and suffering much pain, and she signed the
release in order to get rid of Party A.
8. Party A told Party B that Party B would be hanged or thrown

into the river if he did not sign the agreement. Party B signed
the agreement.
These scenarios of consent present a spectrum of consent, from

informed consent to increasingly problematic consent. At both extremes
(Scenarios 1 and 8), the answer is easy. At one end of the spectrum
with Scenario 1, we have informed consent where a party gives consent
knowingly—with full information and comprehension. In that situation,
Party B is not coerced. Party B has access to information and
understands all the information. Party B can weigh the costs and
benefits and negotiate with Party A. Scenario 1 agreements embody the
ideal paradigm upon which contract law is based.
At the other end of the spectrum with Scenario 8, there is only
apparent consent obtained as a result of threats of physical harm. All
reasonable people would agree that the transaction involved no
meaningful consent. Enforcing a Scenario 8 agreement would not
advance contract law’s goal of protecting individual autonomy and
freedom of contract. Under contract law, courts have refused to
69
enforce that type of agreement. 63 Contract law defenses such as fraud,

duress, and undue influence recognize the defects in consent in
Scenarios 6, 7 and 8. 64
But the decision gets harder in agreements falling between the
two extreme ends. Scenario 2 raises the consent problem with which
this Article is concerned. As discussed below, current contract law’s
consent-centric approach means that most of the contracts between
Scenarios 2 and 5 will be enforced by the courts despite the problems
that speak against the existence of a truly voluntary consent.
II. Consent and Contract Law

This Part examines the ways contract law has relied on consent
to justify its choice to side with one private party over the other. This
Part briefly reviews contract law formation doctrines, defenses, and
interpretation and construction principles and points out that the con-
sent concept is reflected in numerous contract law doctrines. Applica-
tion of contract law doctrines is essentially a quest for parties’ consent.
A. Consent and Contract Formation
The consent concept is reflected in contract law doctrines
governing contract formation such as offer, acceptance, mutual assent,
and intent. These concepts are essentially vehicles for courts to
determine whether consent exists. 65 Because courts do not have mind-
reading ability, courts have to rely on observable evidence to
ascertain whether parties consented. 66 The task is made more difficult
63. See, e.g., Brown v. Pierce, 74 U.S. (7 Wall.) 205, 214 (1868) (“[M]oral
compulsion, such as that produced by threats to take life or to inflict
great bodily harm, as well as that produced by imprisonment, is
everywhere regarded as sufficient, in law, to destroy free agency,
without which there can be no contract, because, in that state of the
case, there is no consent.”).
64. See Lawrence Kalevitch, Gaps in Contracts: A Critique of Consent
Theory, 54 Mont. L. Rev. 169, 193 (1993) (noting that liberalism has
promoted “the idea of limits to freedom of contract and has endorsed
doctrines such as duress and unconscionability that are said typically to
‘police’ the bargain”).
65. See Barnett, supra note 4, at 304 (“Contract theory searches for the
‘extra’ factor that, if present, justifies the legal enforcement of a
commitment or promise.”). One can question whether the concepts of
offer, acceptance, and assent or intent necessarily equal the concept of
consent. It is beyond the scope of this Article to examine the subtle
differences between these concepts. Suffice it to say that, in most cases,
consent is implicit in those terms, and a search for offer, acceptance, and
assent or intent is really a search for consent.
66. See id. at 305 (“[We] learn the meaning of terms by comparing (1) the
conduct of persons with their words, or (2) their conduct and words in
70
because courts have to ascertain the existence of consent after a

dispute has arisen. When parties are in a dispute, they generally will
have conflicting and self-serving testimony about whether one party
consented. But courts cannot read the consenter’s mind. By necessity,
courts have developed doctrines to assist them in this task.
An examination of those doctrines reveals that courts have primarily
adopted an objective approach to ascertain the existence of consent. 67
Under the objective test, courts look at objective manifestations of
intent—essentially, what a reasonable person looking at the outward
manifestation would have understood the intent to be.68 The professed
reason for the objective test is to protect certainty of contracts and the
other party’s reliance on the promisor’s manifestations. 69
To assess whether a party has consented, courts focus on evidence
such as signature on an agreement, spoken words, or other actions
related to the transaction. Courts have placed heavy emphasis on a
party’s signature. 70 They have held a party accountable for giving an
one context with those in another, or (3) one person’s conduct and
words with another person’s conduct and words.”).
67. See Mautner, supra note 4, at 551 (“[O]ver the course of the twentieth
century, the objective approach evolved into one of the most entrenched
dogmas of contract law.”); see also Ray v. William G. Eurice & Bros.,
93 A.2d 272, 279 (Md. 1952) (“[W]here there has been an integration of
an agreement, those who executed it will not be allowed to place their
own interpretation on what it means or was intended to mean. The test
in such case is objective and not subjective.”); Restatement (Second)
of Contracts § 21 (1981) (rejecting the subjective approach). For an
interesting perspective on the origins of the objective theory, see Joseph
M. Perillo, The Origins of the Objective Theory of Contract Formation
and Interpretation, 69 Fordham L. Rev. 427, 428 (2000) (stating that
“objective approaches have predominated in the common law of
contracts since time immemorial” and describing “a brief but almost
inconsequential flirtation with subjective approaches in the mid-
nineteenth century”).
68. Mautner, supra note 4, at 551.
69. See Perillo, supra note 67, at 442–43 (discussing the desire for certainty
throughout the jurisprudence of the early republic).
70. See e.g., MCC–Marble Ceramic Ctr., Inc. v. Ceramica Nuova
d’Agostino, S.P.A., 144 F.3d 1384, 1387 n.9 (11th Cir. 1998) (“[P]arties
who sign contracts will be bound by them regardless of whether they
have read them or understood them.”); Linville v. Ginn Real Estate Co.,
697 F. Supp. 2d 1302, 1308–09 (M.D. Fla. 2010) (“A party who signs an
instrument is presumed to know its contents. . . . He cannot avoid his
obligations thereunder by alleging that he did not read the contract, or
that the terms were not explained to him, or that he did not understand
the provisions.” (alteration in original) (quoting Benoay v. E.F. Hutton
& Co., 699 F. Supp. 1523, 1529 (S.D. Fla. 1988))); Reliable Fin. Co. v.
Axon, 336 So. 2d 1271, 1274 (Fla. Dist. Ct. App. 1976) (finding “that a
party to a writing cannot deny its contents on the ground that he [or
she] signed it without reading it”).
71
impression of assent when a party signed a contract even though the

party might not have read or understood the terms. 71 Courts have
often stated that parties have a duty to read the document before
they sign it. 72 Accordingly, if a party objectively manifests assent to
be bound to a contract (the best example is by signing a contract), a
court will almost automatically find assent to all terms contained in
the writing. Typically, Courts readily dismiss parties’ statements such
as, “I didn’t read it” or “I didn’t understand it,” absent circumstances
which give rise to contract law defenses such as fraud,
unconscionability, or incompetence. 73
The objective test furthers important goals of certainty and
predictability of contract. Scholars and courts have identified the ad-
vantages of this approach. 74 It provides certainty of contract so that the
parties can rely on contractual agreements. It encourages individual
responsibility. 75 One better think carefully before one signs because one
will be held responsible for one’s actions. It also eliminates problems of
proof and results in judicial efficiency because the signature is in black
and white. However, because it focuses on outward manifestations, it
could result in consent being found even though the party did not
consent. 76 Because of market manipulation of information, it is
71. See, e.g., Dixon v. Countrywide Home Loans, Inc., 710 F. Supp. 2d 1325,
1331–32 (S.D. Fla. 2010) (dismissing plaintiff borrower’s claims because
the plaintiff reviewed and signed the loan documents at closing).
72. See, e.g., Reliable Fin., 336 So. 2d at 1274 (“It is the duty of every
contracting party to learn and know its contents before he signs and
delivers it.” (quoting All Fla. Sur. Co. v. Coker, 88 So. 2d 508, 511 (Fla.
1956))); see also cases cited supra note 70.
73. See, e.g., Silver v. Countrywide Home Loans, Inc., 760 F. Supp. 2d
1330, 1344 (S.D. Fla. 2011) (granting summary judgment in favor of the
lender and denying the borrower’s claims of fraud, conspiracy to
defraud, and unfair trade practices because she was deemed to have
knowledge of the document she signed); O.W. Holmes, The Path of the
Law, 10 Harv. L. Rev. 457, 464 (1897) (“[T]he making of a contract
depends not on the agreement of two minds in one intention, but on the
agreement of two sets of external signs,—not on the parties’ having
meant the same thing but on their having said the same thing.”).
74. See, e.g., Universal Studios, Inc. v. Viacom, Inc., 705 A.2d 579, 589
(Del. Ch. 1997) (“The necessity of preserving predictability and stability
in commercial transactions is fostered by this objective view of
contracts . . . .”); Alces, supra note 18 at 1517–18 (explaining that the
objective test “make[s] questions relating to the formation of contract
and the incidents of contract liability easier to resolve”).
75. Richard L. Barnes, Rediscovering Subjectivity in Contracts: Adhesion
and Unconscionability, 66 La. L. Rev. 123, 129–30 (2005).
76. See Mautner, supra note 4, at 562 (arguing that one of four assumptions
implicit in contract interpretation is that the contracting parties share a
“cultural environment” that gives unequivocal meaning to the content of
the contract). Professor Barnett argued that the objective approach is
72
increasingly common for there to be a manifestation of consent without

any meaningful consent. 77
Another contract law principle that affects contract law’s consent
analysis is the well-established rule that parties do not owe each other
a duty of good faith prior to the formation of the contract. 78 Contract
law assumes that parties bargain at arms’ length, which means that
parties generally do not have a duty to disclose in the negotiation
process. 79 Without access to information, one party may consent to
the transaction without intending to do so.
B. Consent and Contract Defenses
Contract law has long recognized some obvious defects with
consent. It has attempted to deal with the defects by allowing certain
defenses. These contract law defenses mark the outer boundaries of
consent enforceable under contract law. Contract law defenses fail,
however, to address the more subtle consent problems identified in
this Article. 80
consistent with the liberty interest that contract law protects because
the objective approach respects and protects “the rights and liberty
interests of others, whose plans and expectations would be severely lim-
ited if they were not entitled to rely on things as they appear to be and
to take the assertive conduct of others at face value.” Barnett, supra
note 4, at 306. It is certainly true that the objective approach protects
the reliance interests of the promisee. But the objective approach may be
only paying lip service to the liberty interests of the promisor if it results
in enforcing a promise that the promisor has no intention of making. Even
more concerning is a situation where a promisor is deliberately misled into
agreeing to certain terms because of lack of informed consent due to
information asymmetry and marketplace manipulations. The protection of
the promisee’s reliance interest under an objective theory seems to serve
the interests of certainty and fairness to the promisee rather than respect-
ing the liberty interests of the promisor. See Mautner, supra note 4, at
552–53 (arguing that the shift from subjectivism to objectivism was a
“shift from an ethos of individualism and self-reliance to one of
responsibility, both private and collective, towards others,” and a shift
aimed at promoting “certainty and predictability”).
77. See Radin, supra note 10, at 1128 (arguing that the advent of
cyberspace contracts will make the conflict between the consent-based
system and nonconsensual practices more urgent).
78. See Dennis M. Patterson, A Fable from the Seventh Circuit: Frank
Easterbrook on Good Faith, 76 Iowa L. Rev. 503, 522 (1991) (stating
that good faith is “relative to the agreement of the parties”).
79. Richard A. Posner, Let Us Never Blame a Contract Breaker, 107 Mich.
L. Rev. 1349, 1357–58 (2009).
80. See discussion infra Part III.D.
73
Courts have refused to uphold contracts signed as a result of

duress. 81 These defenses involve situations where one party has
obtained consent improperly. As illustrated by Scenario 8, duress
involves the situation where the promisee used actual physical force or
unlawful threat of death or bodily harm. 82 In this type of situation, it is
easy to conclude that no meaningful consent exists because there is no
free will.
Where one party had misrepresented an existing fact, courts have
also refused to enforce the promise against the consenter who relied on
the misrepresentation. 83 Misrepresentation involves situations where the
promisee obtained the other party’s consent by making a fraudulent
misrepresentation about a material fact, with knowledge of its falsity
and with the intent to induce the other party to enter into the
contract, and where the other party justifiably relied on the
misrepresentation. 84 This defense reflects contract law’s recognition
that there is no free will in such a context. The misrepresentation
deprived the promisor of the information necessary for consent.
Courts have also relied on the doctrine of unconscionability to
refuse enforcement of a contract in certain limited situations. 85
Unconscionability involves situations where one party uses a strong
bargaining position or unethical tactics to take advantage of another’s
weakness, ignorance, or distress. 86 This defense is the broadest and
has the potential to undo many contracts where consent does not
exist. As explained below, however, courts have applied the doctrine
81. See, e.g., Ortt v. Schwartz, 62 Pa. Super. 70, 74–75 (1916) (stating that
contracts produced under intimidation are voidable, but threats of
arrest before commencement of such proceedings are not enough to con-
stitute duress).
82. See Brown v. Pierce, 74 U.S. (7 Wall.) 205, 209–10, 216 (1868) (finding
that contracts or deeds procured through fear of loss of life by the other
party are voidable).
83. See, e.g., Vokes v. Arthur Murray, Inc., 212 So. 2d 906, 908–09 (Fla. Dist.
Ct. App. 1968) (finding that representations by a dance studio that the
appellant was a graceful dancer in order to induce her to purchase more
dance lessons to be false and thus a misrepresentation of fact).
84. For an example of a misrepresentation, see id.
85. See, e.g., Williams v. Walker-Thomas Furniture Co., 350 F.2d 445
(D.C. Cir. 1965) (holding that it is unconscionable when a party with
little bargaining power signs a contract with little or no knowledge of its
contents).
86. See, e.g., Weaver v. American Oil Co., 276 N.E.2d 144, 148 (Ind. 1971)
(refusing to enforce a contract where the stronger party used unequal
bargaining power to its advantage and where the weaker party did not
graduate from high school, did not know the law or understand the
technical terms, and had never read the lease, and where enforcing the
contract would cost the weaker party thousands of dollars for negligence
he did not cause).
74
very narrowly. The doctrine in practice has not been used to correct
the more subtle consent problems.
Other contract defenses, such as mistake and incompetence (also
referred to as incapacity or infancy), recognize the fact that the
consenter does not have necessary information because of a fundamen-
tal mistake or lacks the mental capacity to consent due to mental
disease or age. The defense of mistake (either mutual or unilateral) can
defeat the formation of a contract where the mistake was about a basic
assumption of contract and the mistake had a material effect on the
agreed-upon exchange of performances. 87 These defenses also rest on the
notion that the parties would not have consented had they known
about the mistake or had the capacity to consent.
Additional recognition of defects with consent is reflected in
doctrines that would excuse the promisor from performance under the
contract. The doctrines of impossibility, impracticability, and frustra-
tion recognize the human inability to anticipate all future events that
might affect performance. 88 These doctrines excuse a promisor from
his promise if an event occurs whose nonoccurrence was a basic
assumption upon which consent was based. 89 Contract excuses reflect
judicial recognition of the human inability to see into the future and
courts’ unwillingness to stretch the consent concept too far. 90
C. Consent and Contract Interpretation
The consent concept also permeates contract interpretation princi-
ples. Sometimes, parties dispute the terms of their contract. Courts are
left with the task of determining what the parties have agreed to. In
this area, courts have adopted certain well-established principles as
tools. Those principles reflect contract law’s consent-concentric
87. See Sherwood v. Walker, 33 N.W. 919, 923 (Mich. 1887) (holding that
the defendant seller could rescind the contract of sale if the jury found
that the cow, known as “Rose 2d of Aberlone,” was sold upon the
understanding of both parties that she was barren and useless for
breeding while in fact she was not barren).
88. See Barrack v. City of Lafayette, 829 P.2d 424, 428–29 (Colo. App. 1991)
(holding that a new regulation by the Colorado Department of Health,
which required all surface water to be treated before delivery, made it
illegal for the City of Lafayette to deliver untreated water, and thus under
the doctrine of impossibility the city was discharged of all contractual
duties that might require it to supply citizens with untreated water).
89. Id. at 428.
90. Another contract law defense is based on public policy grounds. Courts
have refused to enforce certain contracts if they are illegal. E.g., Hendrix
v. McKee, 575 P.2d 134, 137 (Or. 1978). This defense is not driven by
the concerns for consent. Instead, the defense reflects a collective social
judgment that those contracts are so offensive that courts will not
enforce them, even if consent exists, because of other overriding public
policy concerns. Id.
75
approach. Like contract formation doctrines, defenses, and excuses,

these well-established contract law doctrines tend to favor the written
agreement considered to be the best evidence of the parties’ consent.
For example, one of the rules of contract construction is the well-
established four corners doctrine. 91 Under the doctrine, a judge is
supposed to stay within the four corners of the contract when
interpreting a written contract to ascertain the intent of the parties. 92
Another related doctrine, the plain meaning rule, requires courts to
interpret a written contract in accordance with its plain meaning if
the terms of the contract are clear and unambiguous. 93 Both doctrines
focus on the written language in a contract.
The parol evidence rule is another well-established contract law
principle that bars introduction into evidence of any prior or
contemporaneous written or oral agreement to contradict the explicit
terms of the written contract. 94 To invoke this doctrine, many contracts
typically contain a standard merger or integration clause that expressly
states that the written contract is the final expression of the parties’
intent and that it merges all prior or contemporaneous agreements
between the parties. 95 The parol evidence rule thus favors the written
agreement and reflects contract law’s focus on objective consent.
D. Current Contract Law’s Enforcement of Contract Under Consent
Application of the above contract law doctrines leads to the
enforcement of all of the contracts falling within Scenario 1. That is
not controversial. However, under current standards, most contracts
in Scenarios 2 through 5 will also be enforced even though the consent
in those cases is problematic. 96
Contract law now generally enforces contracts like the one in Sce-
nario 2 despite the consent defect. 97 In certain extreme cases involving
91. See, e.g., Midwest Builder Distrib., Inc. v. Lord & Essex, Inc., 891
N.E.2d 1, 19 (Ill. App. Ct. 2007) (“[W]hen interpreting an integrated
contract, courts are limited to considering material that lies within the
four corners of the text, rather than resorting to extrinsic evidence.”).
92. Id.
93. See, e.g., Foothill Capital Corp. v. E. Coast Bldg. Supply Co., 259 B.R.
840, 845 (E.D. Va. 2001) (holding that because both parties conceded that
the language of loan documents was clear and unambiguous, the court’s
inquiry into the parties’ intent was limited to the loan documents).
94. See, e.g., Williams v. Spitzer Autoworld Canton, L.L.C., 913 N.E.2d 410,
415–16 (Ohio 2009) (holding that the parol evidence rule prohibited
evidence of an oral agreement that contradicted the terms of the written
contract).
95. See, e.g., id. at 413 (noting that the contract at issue had a merger
clause).
96. See subprime mortgage cases cited supra note 16.
97. Id.
76
unequal bargaining power and substantive unfairness, courts have

refused to enforce contracts similar to those in Scenarios 3 through 5
by resorting to contract law defenses such as the doctrine of
unconscionability. But courts have been unwilling to expand the
doctrine of unconscionability. 98 As a result, many of the contracts
falling within Scenarios 2 to 5 have been enforced.
As we approach the more problematic end of the consent
spectrum (i.e., contracts falling within Scenarios 6, 7, and 8), courts
have been more willing to invoke current contract law defenses such
as fraud, duress, and undue influence and have struck down those
agreements. 99 As it stands right now, contract law enforces contracts
in multiple situations where consent is defective.
III. Problems with Contract Law’s Consent Focus

Contract law’s focus on consent seemingly offers an objective way
to assess whether a contract should be enforced. But as described in
the above Part, the objective approach to ascertaining the existence
of consent frequently results in enforcing agreements that do not
reflect meaningful consent (for example, agreements falling within
Scenarios 2 through 5). Contract law has not answered many of the
hard questions related to the consent concept in light of
unprecedented marketplace manipulation of information as a result of
better understanding of the human decision-making process.
Contract law should reevaluate its consent-centric approach in light
of the many problems associated with consent. Consent is a motivation-
ally complex concept to begin with. 100 The consent concept is easily
manipulated, and this compounds its inherent complexity. There is
strong evidence of marketplace manipulation targeting human biases. 101
The existence of apparent consent based on objective indicia, such as a
signature on a written document, cannot be presumed to reflect the
individual will where the other party has manipulated information.
The increasing use of standard form contracts and cyberspace
contracts also makes it necessary for contract law to abandon its
98. See Amy J. Schmitz, Embracing Unconscionability’s Safety Net Func-

tion, 58 Ala. L. Rev. 73, 101 (2006) (arguing that consumers rarely file
or settle claims in part because of courts’ adverse attitudes toward
unconscionability claims).
99. See, e.g., Brown v. Pierce, 74 U.S. (7 Wall.) 205, 209–10 (1868) (finding
threats to life as a form of duress); Weger v. Rocha, 32 P.2d 417, 420
(Cal. Dist. Ct. App. 1934) (finding that the agreement was signed by
the plaintiff under undue influence while she was seriously injured and
in a nervous condition).
100. See discussion infra Part III.A.
101. See discussion infra Part III.B.
77
consent focus. 102 In those situations, there is an increasing disconnect

between consent in contract law and consent in reality. 103 Contract
law’s traditional search for consent is inappropriate in those
situations. Maintaining the consent focus will put contract law in the
untenable position of having to maintain a fiction when it is not
possible to find meaningful consent.
Current contract law defenses are insufficient to overcome the bias of
a consent-focused approach. As long as contract law remains consent
centric and contract law doctrines remain oriented toward the search for
consent, it does not solve the fundamental problems of power imbalance
and contract law’s potential to perpetuate that imbalance.104
A. The Motivational Complexity of Consent
Consent is an intentional behavior, and it is an act of meaning
that necessarily derives its meaning from the sociocultural context in
which it is recognized. 105 Concepts such as choice or consent can mean
different things to different people depending on their cultural
background and social class. 106
For example, Professor West described the characters in the
fictional world of Franz Kafka and contrasted that world against the
ideal one envisioned by law and economics scholar Richard Posner.
She pointed out that in both worlds, consent was used to “validat[e]
otherwise unappealing states of affairs.” 107 She described consent as an
“ambiguously motivated human act” and cautioned against relying on
consent as a basis for moral justification. 108
Consent is also a culturally dependent concept. Studies have
shown that middle-class Americans tend to value choice more so than
people from working-class or other cultural backgrounds. 109 The sig-
nificance of these findings is that people may be motivated by
multiple factors when they “consent.”
102. See discussion infra Part III.C.

103. Radin, supra note 10, at 1128.
104. Danielle Kie Hart, Contract Formation and the Entrenchment of Power,
41 Loy. U. Chi. L.J. 175, 198–99 (2009).
105. Jerome Bruner, Acts of Meaning 28–29 (1990).
106. Nicole M. Stephens, Hazel Rose Markus & Sarah S.M. Townsend,
Choice as an Act of Meaning: The Case of Social Class, 93 J.
Personality & Soc. Psychol. 814 (2007); see also West, supra note
7, at 386–88 (comparing consent in Posner’s world of welfare maximizing
individuals with Kafka’s world of authoritarian personalities).
107. West, supra note 7, at 386.
108. Id. at 425.
109. See Stephens, Markus & Townsend, supra note 106, at 815 (“[I]ndepend-
ence is the dominant discourse in mainstream American society . . . .”).
78
The country we live in today is very different from the country

during the nineteenth century when contract law experienced its
growth. 110 According to 2010 census data, the landscape of the U.S.
population is rapidly changing. Although whites remain the
majority, 111 there were substantial increases in minority populations
between 2000 and 2010. 112 For example, the Hispanic and Asian
groups each increased by 43 percent. 113
Contract law’s consent focus, viewed from the colored lens of
dominant western values, will often result in enforcing an agreement
where there is no consent. The result will be use of state power in
favor of those with more resources. 114
B. Marketplace Manipulation of Consent
Consent’s complexity poses even more challenges when
marketplace actors devote substantial resources to manipulate
people’s consent. Behavioral studies in the last three decades have
demonstrated that the human decision-making process can be easily
manipulated. 115 Human beings suffer from predictable biases. 116 We
110. See Mautner, supra note 4, at 552–53 (discussing the shift from
subjectivism to objectivism in contract law during the nineteenth
century).
111. According to the 2010 census, “White” refers to a person having origins
in any of the original peoples of Europe, the Middle East, or North
Africa. Karen R. Humes, Nicholas A. Jones & Roberto R.
Ramirez, Overview of Race and Hispanic Origin: 2010 Census
Briefs 3 (2011), available at http://www.census.gov/prod/cen2010/
briefs/c2010br-02.pdf. It includes people who indicated their race as
“White” or reported entries such as Irish, German, Italian, Lebanese,
Arab, Moroccan, or Caucasian. Id. So “White” is not as monocultural as
the label suggests.
112. Id.
113. Id. at 3, 5.
114. One of the impetuses for the Occupy Wall Street Movement is economic
inequality. Occupy Wall Street, supra note 25.
115. See, e.g., Ariely, supra note 37, at 317 (“But, as the results presented
in this book (and others) show, . . . [o]ur irrational behaviors are neither
random nor senseless—they are systematic and predictable.”);
Kahneman, supra note 13, at 8–10 (explaining that “heuristics and
biases” are becoming increasingly studied in fields outside psychology).
One could argue that human manipulation of information and of each
other has been present since the beginning of time. The oldest example of
that is when Eve persuaded Adam to eat the fruit from the Forbidden
Tree. That is why businesses spend money on advertising. Although
manipulation has always been present, manipulation at such sophisticated
levels and on such a scale has only been present for the last couple of
decades. Difficult as it is, contract law needs to draw a line between what
is acceptable and what is not. The reasonableness standard proposed in
this Article allows a court to draw the line appropriately. Contract law’s
79
tend to be overly optimistic and myopic, and we place too little

weight on future costs and benefits and too much weight on short-
term costs and benefits. 117 Individuals also tend to misjudge the likeli-
hood of a future event. They rely on the shortcut of a small sample of
present events as indicative of future events while ignoring other
evidence, such as prior occurrences and the quality of the sample. 118
These biases lead to systematic underestimation of future risks. 119
The human tendency to rely on shortcuts to make decisions often
leads to predictable mistakes. 120 For example, when making a decision,
we tend to rely on information that is salient or available to us
(referred to as the saliency effect). 121 These known biases make it
possible to predict people’s irrationality. 122 Studies have shown that
what people choose tends to be influenced by how the choices are
presented to them (referred to as the framing effect). 123
Manipulating those biases was exactly what happened in
transactions leading up to the subprime mortgage crisis. 124 In those
transactions, lenders manipulated borrowers with less information
through deliberate contract design. 125 Subprime loan products with
cost deferral features took advantage of people’s inherent biases. The
borrowers focused on short-term benefits and underestimated future
risks. 126 Those mortgage products were also deliberately designed to
be so complicated that borrowers could not properly assess the
risks. 127
tolerance of unbridled marketplace manipulation will end up using the

coercive power of the state to aid the manipulator.
116. Ariely, supra note 37, at 317.
117. See id. at 320 (“It is difficult to sacrifice consumption today for saving
in the distant future, but it is psychologically easier to sacrifice
consumption in the future . . . .”).
118. Kahneman, supra note 13, at 8–10.
119. Id.
120. Id.
121. Id.
122. Ariely, supra note 37, at 317.
123. Kahneman, supra note 13, at 88.
124. Bar-Gill, supra note 14, at 1120–21; White, supra note 14, at 158–59.
125. Bar-Gill, supra note 14, at 1079–80; White, supra note 14, at 158–60.
126. See David Faber, And Then the Roof Caved In 45 (2009) (discuss-
ing how after a twenty-minute phone call, borrowers could have a loan
cleared within a week). For a detailed discussion of how lenders
exploited these decisional biases in consumer contract contexts, see
White, supra note 14, at 158–60, and the articles cited therein.
127. See Edmund L. Andrews, Busted: Life Inside the Great Mort-
gage Meltdown 77 (2009) (pointing out that even former Federal
80
C. The Growing Disconnect Between Consent and

Commercial Contract Practices
Commercial contract practices, such as the increasingly common
use of form contracts and cyberspace contracts, also make it more
urgent to reexamine the consent-focused approach. 128 The exponential
increase in cyberspace commercial transactions means that more and
more contracts are being entered into electronically. In cyberspace
transactions a user is typically required to agree by clicking on the
“OK” button. 129 In those cases, users often do not see the terms before
the transaction, 130 or they have not read the terms before they click
on the button indicating acceptance of those terms. In those cases, it
is difficult to imagine that informed consent exists. 131
As Professor Radin pointed out, the advent of cyberspace
contracting exposes the consent problem. She pointed out that “[t]he
problem, in a nutshell, is that our ordinary-discourse commitment to
a consent-based system will come into clearer conflict with practices
that do not seem consensual.” 132
It is clear that cyberspace contracting is here to stay. 133 Contract
law’s consent centric-approach presents a court with this dilemma: If
the court is true to the consent concept, it will have to strike down
cyberspace contracts for lack of consent. One cannot seriously argue
that a buyer has consented at the time of contracting when the buyer
Reserve Chairman Alan Greenspan acknowledged “that a person with a

PhD in mathematics wouldn’t understand them”).
129. See id. at 1128–30 (describing various “contract as click” agreements).
130. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1452 (7th Cir. 1996)
(finding that the defendant’s use of the software after purchase, coupled
with a license agreement that appeared on screen, constituted
acceptance). The ProCD case presented an extreme example of the
disconnect between contract law and marketplace practices. Judge
Easterbrook held that a “contract” was enforceable even though the
buyer did not know about the contract when he purchased the product.
Id. This raises the interesting issue of whether consent is a necessary
element of a contract, which is beyond the scope of this Article.
131. I have to confess that I have personally clicked on an “accept” button
on many occasions. A few times, I did make a valiant effort to read and
understand the contract terms, but gave up when it became too time
consuming and I needed to use the software. On those occasions, I
hoped silently that the terms I had just accepted were reasonable terms.
133. See, e.g., ProCD, 86 F.3d at 1451 (pointing out that these types of
business practices, “[n]otice on the outside, terms on the inside, and a
right to return the software for a refund if the terms are unacceptable (a
right that the license expressly extends), may be a means of doing
business valuable to buyers and sellers alike”).
81
has never read the contract. That would mean that a large number of
cyberspace contracts would not be upheld regardless of the practical
necessity of having to rely on those contracts to move cyberspace
commerce forward. On the other hand, if a court chooses to uphold
such a contract, it will necessarily appear to be paying lip service to the
consent concept. 134 By finding consent where there is none, the court is
not only damaging its own credibility and the legitimacy of contract
law as an institution, but also denigrating the ideals imbued in the
concept.
D. Insufficiency of Current Contract Defenses
Can current contract law defenses address the defects related to
consent? Yes, but only to a certain extent. In the scenarios set forth
in Part I.B, courts have applied contract law defenses to strike down
agreements falling within Scenarios 6, 7, and 8. But so long as the
analysis begins with a search for consent, courts are unlikely to apply
these contract law defenses to contracts with consent defects
identified in Scenarios 2 through 5. A different mindset and standard
are necessary to address those consent problems.
Judges, like other humans, suffer from decisional biases. For a
judge with a traditional commitment to the consent focus, contract
law defenses will not be sufficient to address the more subtle consent
problems identified in Scenarios 2 through 5. That explains why
courts have mostly enforced contracts similar to those in Scenarios 2
through 5. 135 Behavioral studies have shown that humans are easily
influenced by what they are exposed to, a phenomenon known as the
priming effect, 136 the anchoring effect, 137 and availability bias. 138 Since
courts are primed to think that consent is sufficient to justify
enforcement of contracts, they have proven very reluctant to rely on
134. Judge Easterbrook faced this dilemma in ProCD and he apparently

chose the more practical approach. As a result, he was widely criticized.
See, e.g., Roger C. Bern, “Terms Later” Contracting: Bad Economics,
Bad Morals, and a Bad Idea for a Uniform Law, Judge Easterbrook
Notwithstanding, 12 J.L. & Pol’y 641, 641–43 (2004) (providing
multiple articles that disagree with Judge Easterbrook’s opinion). For
other examples of courts paying lip service to consent, see cases cited
supra notes 70–72.
135. See discussion supra Part I.B. and cases cited therein.
136. See Kahneman, supra note 13, at 52–53 (demonstrating that the
priming effect will lead people to complete “SO_ P” with “SOUP”
instead of “SOAP” after having recently seen or heard “EAT”).
137. See id. at 122–24 (discussing various studies showing how people
readjust their guesses after hearing another possible answer).
138. See id. at 129–35 (describing various studies showing that if people can
come up with many instances of a particular class, they will judge that
category to be large).
82
any contract law defenses to undo a contract where apparent consent

seems to exist.
For example, courts have been extremely reluctant to apply the
doctrine of unconscionability. 139 Conceived in equity, this doctrine
could have been used to undo contracts where consent was problem-
atic. An expansive application of the doctrine of unconscionability
could, for example, result in voiding those agreements in Scenarios 2
through 5. But courts have not done so. 140 Courts have applied the
doctrine only in limited situations involving unequal bargaining power
and unfair terms. 141 The cases where courts have applied the doctrine
typically involve a consumer who signed a standard form contract—
drafted by the more powerful party and with draconian terms
favoring the powerful party. 142 It is very rare to have a successful
unconscionability defense in a commercial context. 143 Courts have only
found an agreement unconscionable where it offended notions of
“decency,” or had grossly unfair results—all viewed in the context of
a firm commitment to the consent concept. 144
139. See generally Schmitz, supra note 98 (discussing in depth the

development of the unconscionability doctrine).
140. See cases arising out of subprime mortgage crisis, supra note 16.
141. See generally Paul Bennett Marrow, Squeezing Subjectivity from the
Doctrine of Unconscionability, 53 Clev. St. L. Rev. 187 (2005–06)
(arguing to update, or even eliminate, current unconscionability doctrine
and govern potentially unconscionable contracts by various legislative
regimes).
142. See, e.g., Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449–
50 (D.C. Cir. 1965) (“[W]hen a party of little bargaining power, and
hence little real choice, signs a commercially unreasonably contract with
little or no knowledge of its terms, it is hardly likely that his
consent . . . was ever given to all the terms. In such a case . . .
enforcement should be withheld.”).
143. See Schmitz, supra note 98, at 101 (describing legislative attempts to
limit unconscionable contracts by permitting merchants to elect states
that enforce form contracts).
144. See Nancy S. Kim, Evolving Business and Social Norms and
Interpretation Rules: The Need for a Dynamic Approach to Contract
Disputes, 84 Neb. L. Rev. 506, 551–52 (2005) (“Generally, an
unconscionable agreement offends notions of ‘decency’ . . . .” (quoting
Gimbel Bros. Inc. v. Swift, 307 N.Y.S.2d 952, 954 (Civ. Ct. 1970)));
Mautner, supra note 4, at 554 (“[T]he culture that judges and lawyers
internalize in their daily lives determines, in subtle but effective ways,
the options available to them in making decisions in the law and in
developing the law. This explanation does not negate the role of
reflective, conscious legal deliberation in law. Still, it is premised on the
claim that to act in law is to act within a cultural system, so that a
good deal of what transpires in law is done on the non-reflective and
non-conscious level.”).
83
E. Consent and Contract Law Goals

Contract law’s consent focus may be detrimental to stated
contract law goals. Scholars have identified various goals of contract
law, including constraining opportunistic behavior, reducing trans-
action costs, and promoting efficient exchanges. 145 Contract law’s
consent focus actually encourages opportunistic behavior. For
example, lenders targeting borrowers relied on consent to justify
inducing borrowers to sign up for subprime mortgage products that
they could not afford. 146 Investment bankers relied on consent to
justify their sale of risky derivative financial products to third-party
investors. 147 As long as the parties know that their contracts will be
enforced if they can manage to get the other party to sign the
contract, the parties are motivated to manipulate the information to
obtain consent. 148
Contract law’s consent approach will result in increased
transaction costs. The consent focus will lead to enforcing more and
more contracts that are not the result of voluntary consent.
Eventually, this will result in less trust in society. 149 When trust is
low, the transactional costs ex ante are high because people have to
provide for multiple contingencies not encountered when people trust
each other. 150 The transaction costs ex post are also high when
unhappy contractual parties sue each other, as evidenced by the
aftermath of the subprime mortgage crisis. 151
145. Trebilcock, supra note 7, at 16–17.

146. For example, lenders were reportedly blaming borrowers for choosing
their real estate investments or loans with subprime terms. Rick Brooks
& Ruth Simon, Subprime Debacle Traps Even Very Credit-Worthy,
Wall St. J., Dec. 3, 2007, at A1.
147. A Wall Street firm was quoted as saying that professional investors
chose the risk exposure and voluntarily bought derivative financial
products. Gretchen Morgenson & Louise Story, Banks Bundled Bad
Debt, Bet Against It and Won, N.Y. Times, Dec. 24, 2009, at A1.
148. See discussions supra Part II.
149. See Joseph E. Stiglitz, Freefall: America, Free Markets, and
the Sinking of the World Economy 289 (2010) (“[W]e have created
an economic system that encourages shortsighted behavior—behavior
that is so shortsighted that the costs of the breakdown in trust are never
taken into account.”).
150. See Shermer, supra note 40, at 177–78 (quoting Paul Zak, a professor
of economics at Claremont Graduate University, explaining the positive
correlation between trust and economic growth).
151. Navigant Consulting, Inc., a global consulting firm, found that more
subprime-related lawsuits were filed in the first half of 2008 than in all of
2007 and that the total number of subprime-related lawsuits exceeded the
number of lawsuits resulting from the savings and loan crisis in the early
1990s. Subprime Mortgage Litigation Filings Surpass S&L Benchmark,
84
The consent focus may also undermine the efficiency goal of

contract law. Contract law’s private ordering paradigm is said to
promote efficiency because it is presumed that parties would not have
entered into a contract unless they felt that the transaction would
have made them better off. 152 Hence, when contract law limits itself to
enforcing the bargain struck by the parties, it is said to be promoting
efficient exchanges. But that presumption is only valid if the parties
enter into the transaction voluntarily and with all the information
necessary to make a decision. 153 Because of the problems identified in
this Article, the focus on consent will lead to enforcing contracts
without informed decision making. For example, a large number of
subprime mortgage transactions left millions of people worse off than
before. Many borrowers might not have entered into these
transactions had they had access to all the information necessary to
make an informed decision.
Ultimately, contract law’s consent-centric approach is unfair to
people who are not in a good position to help themselves. A legitimate
governmental goal is to create a society fair for its people. Fairness is
also embodied in multiple constitutional principles such as the Equal
Protection Clause of the Fourteenth Amendment. Contract law’s
consent approach, seemingly neutral on its face, is unfair to people
who are not as well informed or endowed with resources. 154
IV. Alternative to a Consent-Focused Approach

If contract law does not rely on an individual’s consent as a
lynchpin of enforcement, what test should contract law adopt to
determine whether to enforce a contract? This Article suggests that
courts adopt a totality of circumstances test to determine whether a
contract should be enforced. A totality of circumstances test would be
more flexible than a consent-focused approach. Instead of trying to
ascertain whether an individual consented or not—an almost
Navigant Consulting Study Finds, Navigant, 1 (Sept. 10, 2008),

http://www.navigant.com/~/media/Site/Insights/Financial%20Services/
Subprime%20Mortgage%20Litigation%20F_Financial%20Services.ashx.
Navigant reported that 607 lawsuits were filed in the federal court during
the 18 months ending in June 2008. Id. This number is higher than the
number of lawsuits filed in any other major financial crisis. Id.
152. Trebilcock, supra note 7, at 244 (“The strongest welfare claim that
can be made on behalf of the private ordering paradigm is from the
perspective of Pareto efficiency. . . . [I]f two parties are to be observed
entering into a contract, one should normally presume that they would
not have done so unless they felt that the contract was likely to make
them better off.”).
153. Id.
154. Dalton, supra note 6, at 1012–21.
85
impossible task due to the complexities of reality—a court should

examine multiple factors surrounding the entire transaction before it
enforces a contract. Courts will not have any difficulties applying the
test. They have applied such a test in multiple contexts. 155 The test
allows courts to utilize their greatest strength—their fact-finding
expertise. 156
A. The Totality-of-the-Circumstances Test in Other Contexts
The totality of circumstances test is no stranger to courts. Courts
have applied the test in multiple contexts, especially in situations that
implicate consent. The test reflects the courts’ recognition of the
perils of relying on outward manifestations of consent. Courts in the
criminal law context have refused to take the apparent consent of the
accused at face value. 157
For example, courts have adopted a totality of circumstances test
to decide whether confessions by an accused in a criminal law context
are voluntary. In criminal law, courts endorse “the strongly felt attitude
of our society that important human values are sacrificed where an
agency of the government, in the course of securing a conviction, wrings
a confession out of an accused against his will.” 158 To determine
whether the confession is voluntary, courts apply a totality of the
155. See discussion infra Part IV.A.

156. See United States v. Estus (In re Estus), 695 F.2d 311, 316 (8th Cir.
1982) (“[A] court must utilize its fact-finding expertise and judge each
case on its own facts after considering all the circumstances of the case.”).
One ready criticism against the adoption of this test is: How can we be
sure that the courts will get it right? As some scholars have pointed out,
individual autonomy may be threatened if courts are not good at what
they are doing. See, e.g., Richard Craswell, Remedies When Contracts
Lack Consent: Autonomy and Institutional Competence, 33 Osgoode
Hall L.J. 209, 233 (1995) (suggesting that if courts do not get it right,
“the state is not merely failing to prevent infringements of autonomy but
is actively contributing to those infringements”). The totality of
circumstances test also encourages more court intervention into private
contractual relationships and conjures up images of “big brother.” The
essential question remains: Are we more willing to subject ourselves to
unbridled marketplace greed or to the government? When the market-
place fails to function in a fair and equitable manner, we have no choice
but resort to government assistance, imperfect as the solution is.
157. With limited exceptions, courts in criminal cases are generally
untroubled by the same problems that plague consent in contract law.
Yet in both situations, consent is heavily influenced by the circum-
stances surrounding the event. The difference is perhaps caused by the
fact that in criminal law an individual’s physical liberty and other state
interests are at stake, while in contract law only economic interests are
at stake. But is there any reason to treat commercial interests as less
worthy of protection? This question is reserved for another day.
158. Blackburn v. Alabama, 361 U.S. 199, 206–07 (1960).
86
circumstances test and examine the circumstances of the interrogation,

instead of focusing on the existence of consent by the accused. 159
Courts also apply a totality of circumstances test in evaluating
whether a juvenile has waived his or her Miranda rights. 160 In that
context, courts put “a heavy burden . . . on the government to
demonstrate that the defendant knowingly and intelligently waived
his privilege against self-incrimination and his right to retained or
appointed counsel.” 161 The Supreme Court noted that the question of
whether an accused waived his rights “is not one of form, but rather
whether the defendant in fact knowingly and voluntarily waived the
rights delineated in the Miranda case.” 162 The Court then pointed out
that the determination whether statements obtained during custodial
interrogation are admissible against the accused is to be made upon
an inquiry into the totality of the circumstances surrounding the
interrogation. 163 In the criminal law context, the “totality of the
circumstances” test permits a court to look into multiple factors such
as the juvenile’s age, experience, education, background, and
intelligence and into whether he has the capacity to understand the
warnings given him, the nature of his Fifth Amendment rights, and
the consequences of waiving those rights. 164
In another context involving definitional difficulties, courts have also
applied a totality of circumstances test in evaluating whether a debtor
satisfied the good faith requirement under 11 U.S.C. § 1325(a)(3)’s
Chapter 13 bankruptcy plan.165 Recognizing the inherent difficulty in
defining “good faith,” one court promulgated a test in which a
bankruptcy court could utilize its fact-finding expertise and reach a
decision after considering all the circumstances of a case. 166 In consider-
ing whether a Chapter 13 debtor proposed his plan in good faith, courts
examine factors such as the type of debt sought to be discharged,
159. Id. at 207–08.

160. See generally Fare v. Michael C., 442 U.S. 707 (1979) (finding that a
juvenile respondent waived his Fifth Amendment rights, notwithstand-
ing his request to see his probation officer); Miranda v. Arizona, 384
U.S. 436 (1966) (holding that the government needs to notify arrested
individuals of their Fifth Amendment constitutional rights prior to an
interrogation).
161. Miranda, 384 U.S. at 475.
162. North Carolina v. Butler, 441 U.S. 369, 373 (1979).
163. Miranda, 384 U.S. at 475–77.
164. Id. at 468–69.
165. Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346, 1348–49 (8th Cir.
1990).
166. United States v. Estus (In re Estus), 695 F.2d 311, 316–17 (8th Cir.
1982).
87
whether the debt is nondischargeable under Chapter 7, and the debtor’s

motivation and sincerity in seeking Chapter 13 relief. 167 Other courts
have adopted a totality of circumstances test similar to that used by
the 8th Circuit in LeMaire and Estus to determine whether the
Chapter 13 debtor has proposed a plan in good faith. 168
Courts have also used a totality of circumstances test in
ascertaining the existence of probable cause necessary for the issuance
of a search warrant, 169 in determining foreseeability in employer-
liability cases, 170 in establishing vicarious liability under the
Commodities Exchange Act, 171 and in determining the validity of
patents. 172 Some courts have adopted a totality of circumstances test
to determine whether prison conditions violate the Eighth Amend-
167. LeMaire, 898 F.2d at 1349.

168. See, e.g., Hardin v. Caldwell (In re Caldwell), 851 F.2d 852, 859 (6th
Cir. 1988) (concluding that “the list provided in In re Estus [was] a
particularly succinct and clear statement of some of the factors that a
court may find meaningful in making its determination of good faith”
(internal quotation omitted)); Neufeld v. Freeman, 794 F.2d 149, 152
(4th Cir. 1986) (holding that a totality of circumstances test may also
include consideration of debtor’s pre-petition conduct); Pub. Fin. Corp.
v. Freeman, 712 F.2d 219, 221 (5th Cir. 1983) (upholding the
bankruptcy court’s finding that a plan proposing no payments to
unsecured creditors was proposed in good faith); Flygare v. Boulden,
709 F.2d 1344, 1347 (10th Cir. 1983) (adopting the factors set forth in
Estus); Kitchens v. Ga. R.R. Bank & Trust Co. (In re Kitchens), 702
F.2d 885, 888–89 (11th Cir. 1983) (holding that determination of good
faith required consideration of factors similar to those used in Estus);
Goeb v. Heid (In re Goeb), 675 F.2d 1386, 1390 (9th Cir. 1982) (holding
that good faith analysis involving consideration of various factors may
also include the substantiality of the proposed repayment); Ravenot v.
Rimgale (In re Rimgale), 669 F.2d 426, 431–32 (7th Cir. 1982) (holding
that a fixed 70 percent repayment requirement was unnecessary to
establish good faith).
169. See, e.g., State v. Baldoni, 609 A.2d 219 (R.I. 1992) (per curiam)
(involving a Rhode Island state police officer’s effort to obtain a warrant
that would authorize a search of the defendant’s residence).
170. See, e.g., Isaacs v. Huntington Mem’l Hosp., 695 P.2d 653 (Cal. 1985)
(establishing the totality of the circumstances as the proper test for
foreseeability regarding employer liability).
171. See, e.g., Stotler & Co. v. Commodity Futures Trading Comm’n, 855
F.2d 1288, 1292 (7th Cir. 1988) (establishing the totality of the
circumstances as the proper test in determining vicarious liability for
“soliciting customers to trade commodity futures accounts”).
172. See, e.g., Envirotech Corp. v. Westech Eng’g, Inc., 904 F.2d 1571, 1574
(Fed. Cir. 1990) (internal quotation omitted) (“Whether an invention is
on sale is a question of law, and no single finding or conclusion is a sine
qua non to its resolution. The totality of the circumstances must always
be considered . . . .”).
88
ment’s prohibition against cruel and unusual punishment. 173

This survey of the cases involving totality-of-the-circumstances
tests shows that courts have fashioned a more flexible test to
ascertain the existence of consent to protect important interests. Why
should economic interests be treated differently? Some scholars have
argued that economic rights should be treated as human rights. 174 The
ultimate, overarching goal of contract law should be fairness in
economic exchanges. A totality of the circumstances approach would
be much more suited for this goal than focusing on the elusive search
for consent of the parties.
B. The Totality-of-the-Circumstances Test for Contract Enforcement
How does a totality-of-the-circumstances test work in contract
law? 175 Instead of searching for an individual’s consent, the test will
permit the courts to examine multiple factors to determine whether a
contract should be enforced. As part of the inquiry, consent will
become a factor of the analysis, not the factor in justifying use of
state power.
For example, under this test, a court can ask whether a
reasonable person under the circumstances would have understood the
terms of the contract and consented based on a full understanding of
the terms. The court can also look into the circumstances surrounding
the negotiations. Was the promisor able to negotiate the terms of the
agreement? The court can also look at the resources of the parties.
Did one party have substantially more resources than the other
party? Was there any manipulation of the information that would
render it unfair for the court to enforce the contract? What are the
terms? Are the terms commercially reasonable? Any other practical
concerns that would render enforcement appropriate?
A totality-of-circumstances-test is a more honest standard. 176 It re-
lieves contract law and courts from the untenable position of having to
173. See, e.g., Jackson v. Hendrick, 503 A.2d 400 (Pa. 1986) (remanding the
case because the lower court did not assess whether the overcrowding of
the prison population violated the Eight Amendment based on a
totality-of-the-circumstances test).
174. See Robin West, Reconstructing Liberty, 59 Tenn. L. Rev. 441, 466
(1992) (“[T]he Fourteenth Amendment must be understood as including
the[ ] positive rights of autonomy, economic self-sufficiency, and political
self-governance.” (emphasis added)).
175. Professor Craswell has suggested that a discussion of what counts as
knowing or voluntary consent should take into consideration the
institutional competence of the courts to award an appropriate remedy
if a contract lacks any meaningful consent. Craswell, supra note 156, at
210, 213. It is beyond the scope of this Article to examine the
relationship between institutional competence and consent analysis.
176. When arguing that consent cannot justify all human experiments,
Garnett described the reliance on consent as “subterfuge designed to
89
ascertain the existence of a human act as elusive as consent and, when

inevitably failing to do so, of having to maintain a fiction. Continuing
the fiction will put the legitimacy of contract law into doubt. 177
Conclusion
The consent concept may have played a useful role when
economic relationships were simpler and when there was less
manipulation in the marketplace. 178 But with unprecedented
manipulation of human decision-making biases, as identified by
behavioral economists in the last few decades, consent has become
very elusive and difficult to define and ascertain. Because of those
difficulties, consent should no longer serve as a justification for the
government’s exercise of power in favor of one party over the other in
a contractual relationship. Contract law has so far relied on a
patchwork of defenses and doctrines to deal with the defects of
consent, but these efforts do not address the difficult situations caused
by increasingly sophisticated marketplace manipulations and prac-
tices. If contract law continues its consent focus, it will end up siding
with the more powerful parties in an economic relationship. One of
government’s functions is to reduce the scope of exploitation. 179
Contract law’s focus on consent will produce a result in opposition to
government’s goals. It will further the perception that government is
putting its thumb on the scale for the rich and the powerful.
hide our unease and to allow us to profess simultaneous commitment to

values that often conflict.” Garnett, supra note 32, at 460.
177. One can argue that another way to solve the consent problem is to
adopt the informed-consent concept. The problem is that the inquiry
into informed consent gets us mired in some tough factual inquiries. For
example, when has a person truly consented? Do we go by objective
manifestations or subjective understanding? What if someone truly
believes that he consented and acted consistently with the subjective
consent (think subprime borrowers); does that justify the state’s
enforcement of consent? What about people who voluntarily agree to be
slaves? What about people who do not understand the terms of the
contract? Some scholars suspect that informed consent is often honored
in the breach and difficult to enforce as a practical matter. Schuck,
supra note 1, at 932–33 (discussing the informed consent requirement in
the patient-physician context).
178. See Stiglitz, supra note 149, at 205 (“The appropriate role of the state
differs from country to country and from era to era. Twenty-first-
century capitalism is different from nineteenth century capitalism. . . .
Globalization and new technologies have opened up the possibility of
new global monopolies with a wealth and power beyond anything that
the barons of the late nineteenth century could have dreamed.”).
179. Id. at 204.
90
MANU/PR/0009/1891
Equivalent Citation: (1891)ILR 18P.C .545, (1891)L.R. 18 I.A. 144, 18M.I.A.144
BEFORE THE PRIVY COUNCIL

Appellants: Wajid Khan
Vs.
Respondent: Raja Ewaz Ali Khan
Watson, Morris, R. Couch and Shand, JJ.
JUDGMENT
Morris, J.
1. In this case a suit was filed by the Appellant, Wajid Khan the son of one Dalmir
khan, seeking to have a declaration of right to possession of certain villages under a
deed or will of the 21st of June, 1865, purporting to have been executed by Rani
Sadha Bibi, the widow of Raja Ali Baksh, in favour of Dalmir Khan. The District Judge
and the Judicial Commissioner of Oudh decided against the Plaintiff; and both those
Courts decided substantially on the same ground, that the document was executed
under circumstances in which it could not be supported.
2 . For the purposes of their Lordships' judgment it appears to them that it is not
necessary to consider whether the document should be construed as a deed of
present conveyance or a will, because in neither aspect can it be upheld. Dalmir Khan
held a highly fiduciary position in regard to Rani Sadha Bibi, who was alleged to have
executed it: she was a lady sixty-five years of age and comparatively illiterate, and
she does not seem to have had any adviser or counsellor except Dalmir Khan, who
appears to have had great influence over her, for one of the exhibits in the case is a
will made by her in his favour in the year 1862, only some three years before the
execution of the document which is in question in this case. He certainly filled such a
position towards her as to render it incumbent upon him to show that he had made a
proper use of the confidence reposed in him by her, and that the execution of the
document, granted without any valuable, consideration and from which he obtained
important pecuniary benefit, was free from all attempt at undue influence. In the
opinion of their Lordships the onus lay upon him to do so; because, although the
deed of 1865 at first provides that this lady sets apart twenty-nine villages of her
patrimony, producing a rental of Rs. 9993 a year, to defray the expenses of her tomb
and that of her deceased husband, it goes on to say that Dalmir Khan, her managing
agent, shall have the management of the endowment in perpetuity, generations after
generations, and that under every circumstance he shall have full power for good or
for evil. Dalmir Khan thus became the person substantially interested, because,
looking at the facts of the case, it would appear that a comparatively small portion of
this large fund could be annually allocated to the expenses of the tomb, and that a
large surplus would each year remain in his hands.
3 . Under these circumstances Dalmir Khan is brought within all the well-recognised
principles which have been already referred to in the discussion of this case by more
than one of their Lordships, namely, that every onus is thrown upon a person who

fills such a character as he did, of showing conclusively that the transaction was an
honest one, and a bond fide one, as to which a woman in the position of this lady
had some independent advice, or some opportunity of knowing exactly what she was
about, and in which she was not under the complete influence of her manager. Their
Lordships are clearly of opinion that this instrument is one that cannot be sustained;
that it is not a bona fide instrument; and that the onus which their Lordships consider
lies upon Dalmir Khan's representative has not been sustained, namely, that of
showing that this was a proper transaction considering the relationship of the parties.
4 . Then it is said that although Rani Sadhi Bibi revoked this deed in 1872 by a
registered petition, it was a deed in praesenti which could not be revoked, at all
events in so far as the endowment was in the nature of a dedication of her property
to the expenses of her husband's and her own tomb, and that the petition itself
recognised at that time the continuing existence and validity of the endowment. But if
the instrument was bad in the beginning, at all events as regards the benefit which
Dalmir Khan took under it, it is difficult to see how his representative is prejudiced
by its revocation in 1872, which if valid puts an end to the instrument, and if invalid
could not set up an instrument that was bad in itself. Their Lordships are clearly of
opinion that the instrument was bad ab initio; that it was improperly obtained by a
person in a fiduciary character; and that even if there were no onus on Dalmir Khan's
representative to prove the honesty of the transaction, all the facts of the case go to
show that there was active undue influence.
5 . Upon these grounds their Lordships will humbly advise Her Majesty that this
appeal should be dismissed, and that the judgment of the Court below should be
affirmed. The Appellant must pay the costs of this appeal.

Compilation On Consent

Uploaded by

Copyright:

Available Formats

Compilation On Consent

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Compilation On Consent

Uploaded by

Copyright:

Available Formats

MANU/TN/0181/1917

Equivalent Citation: (1918)ILR 41Mad33, 40Ind. C as.352

IN THE HIGH COURT OF MADRAS

15-05-2019 (Page 1 of 4) www.manupatra.com Bennett University

15-05-2019 (Page 2 of 4) www.manupatra.com Bennett University

15-05-2019 (Page 3 of 4) www.manupatra.com Bennett University

© Manupatra Information Solutions Pvt. Ltd.

15-05-2019 (Page 4 of 4) www.manupatra.com Bennett University

Bombay High Court

(1) Did the lady execute the Deed of Gift?

(2) Was it written and completed without her knowledge?

(3) Was she able to understand the transaction ?

Indian Kanoon - http://indiankanoon.org/doc/1632707/ 1

Indian Kanoon - http://indiankanoon.org/doc/1632707/ 2

Indian Kanoon - http://indiankanoon.org/doc/1632707/ 3

Indian Kanoon - http://indiankanoon.org/doc/1632707/ 4

Calcutta High Court

Indian Kanoon - http://indiankanoon.org/doc/626082/ 1

Indian Kanoon - http://indiankanoon.org/doc/626082/ 2

Indian Kanoon - http://indiankanoon.org/doc/626082/ 3

Indian Kanoon - http://indiankanoon.org/doc/626082/ 4

Indian Kanoon - http://indiankanoon.org/doc/626082/ 5

25. The parties are directed to bear their respective costs.

Indian Kanoon - http://indiankanoon.org/doc/626082/ 6

IN THE HIGH COURT OF ALLAHABAD

15-05-2019 (Page 1 of 4) www.manupatra.com Bennett University

15-05-2019 (Page 2 of 4) www.manupatra.com Bennett University

15-05-2019 (Page 3 of 4) www.manupatra.com Bennett University

15-05-2019 (Page 4 of 4) www.manupatra.com Bennett University

Orissa High Court

2. The Tribunal recorded the following findings:

(iii) The claim was not barred by limitation;

Indian Kanoon - http://indiankanoon.org/doc/1991214/ 1

(iv) The monthly income of the deceased was Rs. 283/-;

The first four findings are not assailed in this appeal.

Indian Kanoon - http://indiankanoon.org/doc/1991214/ 2

Indian Kanoon - http://indiankanoon.org/doc/1991214/ 3

Indian Kanoon - http://indiankanoon.org/doc/1991214/ 4

The determination of the question of compensation depends upon several imponderables. In

Indian Kanoon - http://indiankanoon.org/doc/1991214/ 5

Indian Kanoon - http://indiankanoon.org/doc/1991214/ 6

13. To sum up-

Indian Kanoon - http://indiankanoon.org/doc/1991214/ 7

Madras High Court

2. Two preliminary issues were framed by the Subordinate Judge:

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 1

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 2

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 3

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 4

14. The defendant's solicitors replied:

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 5

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 6

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 7

23. The following propositions are deducible from the authorities:

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 8

26. I agree and have nothing useful to add.

Indian Kanoon - http://indiankanoon.org/doc/1502516/ 9

Bombay High Court

Indian Kanoon - http://indiankanoon.org/doc/733034/ 1