129.

In General.

130-131.

Mistake.

132-134.

Effect - Remedies.

135-138.

Misrepresentation.

139.

Fraud.

140-141.

Effect - Remedies.

142-144.

Duress.

145-146.

Undue Influence.

In General

129. The mutual consent which is essential to every agreement must be real. There may be no real consent, and therefore no contract, because of

(a) Mistake,

(b) Misrepresentation,

(c) Fraud,

(d) Duress, or

(e) Undue influence.

The next feature in the formation of contract to be considered is genuineness or reality of consent. If we have an apparent agreement possessing the element of form or consideration, or both, and made between parties capable of contracting, we must ask whether the consent of both or either of the parties was given under such circumstances as to make it no real expression of their intention.

There may be various causes for unreality of consent: (1) The parties may not have meant the same thing; or one or both, while meaning the same thing, may have formed untrue conclusions as to the subject-matter of the agreement. This is Mistake. (2) One of the parties may have been led to form untrue conclusions respecting the subject-matter of the agreement by statements innocently made, or facts innocently withheld by the other. This is Misrepresentation. (3) These untrue conclusions may have been induced by intentional misrepresentations or active concealment by the other party, or intentional concealment where there was a duty to disclose, for the purpose of deceiving. This is Fraud. (4) The consent of one of the parties may have been extorted from him by the other by actual or threatened violence This is Duress. (5) Circumstances may have rendered one of the parties morally incapable of resisting- the will of the other, so that his consent was no real expression of intention. This is Undue Influence.1