6. Issues going to “consent”

“This kindness will I show. Go with me to a notary, seal me there Your single bond; and, in a merry sport, If you repay me not on such a day, In such a place, such sum or sums as are Express’d in the condition, let the forfeit Be nominated for an equal pound Of your fair flesh, to be cut off and taken In what part of your body pleaseth me.”^[1]

For a contract to be valid, both of the parties must have consented to its terms. Where at least one of the parties has not given valid consent, there is no valid contract. Thus, a party may raise lack of valid consent as a ground for not being bound by a contract. In doing so, the party will argue either that no consent was given, or that the consent that was in fact given is invalid for some reason. In the former case, the question as to whether consent was in fact given is a matter of evidence. This Chapter deals with situations where it is argued that the consent that was given is invalid for some reason. Thus, it covers the common law and equity on contractual issues, including:

1. a) Duress;
2. b) Undue influence;
3. c) Unconscionability;
4. d) Mistake; and
5. e) Misrepresentation

This Chapter also examines those actions in tort that may be relevant in the context of consent, including negligent misrepresentation and intimidation. In addition, the ACL’s application in relation to unconscionability and its rules on so-called “undue harassment” are examined.

Finally, this Chapter addresses issues going to a third party’s influence over given consent. This means, for example, that the tort of intimidation is discussed both in relation to two-party situations and three-party situations, and that torts such as the tort of interference with contractual relations are considered. Further, this also means that the special rules relating to so-called “surety wives” are considered. All aspects of third party influence are considered at the end of this Chapter.