This article is written by Mayur Sherawat, a B.A.LL.B. student at Christ University, Bangalore. The article talks about the role of implied consent in Indian Contract Law, the types of consent, case laws regarding implied consent, and the jurisprudence of implied consent in foreign courts.

Introduction

For any contract to come into existence, there needs to be fulfilment of the conditions mentioned under Section 10 of the Indian Contract Act, 1872, which are:

  • Free consent of parties competent to contract, 
  • A lawful consideration, 
  • A lawful object 
  • Not be expressly declared void by contract law.

Among these conditions, free consent can be construed or understood to be the actions of the parties. For a lawful contract, consent may be not be required to be in words; such consent is referred to as an implied consent. In this article, we are going to cover the various dimensions of implied consent

Free consent

According to Section 13 of the Act, persons are said to consent when they agree upon the same thing in the same sense, as expressed by the legal maxim ‘consensus ad idem’. However, this consent must be free. Free consent has been defined under Section 14, stating that for a lawful contract, consent must not be vitiated by or hold any trace of coercion, undue influence, fraud, misrepresentation, or mistake.

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Factors vitiating consent

  • Coercion: is the use of threats, intimidation, or force to impel someone to enter into a contract against their will, rendering their assent involuntary.
  • Undue Influence: occurs when a dominating party uses a position of authority or trust to manipulate the decisions of a weaker party, thus compromising their ability to offer free and informed consent.
  • Fraud: happens when one party actively deceives the other by giving false information or concealing crucial facts in order to encourage them to enter into the contract, resulting in consent based on deception.
  • Misrepresentation: Misrepresentation is the unintentional, not purposeful, giving of misleading information that causes the other party to misinterpret the terms or implications of the contract.
  • Mistake: A mistake happens when both parties have incorrect perspectives on a fundamental component of the contract.

Types of consent 

Explicit consent

Explicit consent refers to an unambiguous agreement given by one party to another. For consent to be explicit in contract law, there must be clear communication. The terms of the contract must be communicated in a manner that is readily comprehensible to the party giving said concurrence. Any legal jargon, phrases, or complex language should be explained in simple terms to ensure complete comprehension by the consenting party.

Implied consent

Implied consent refers to agreement given by a person’s action or inaction that is inferred through circumstances such as those exemplified below. Implied consent is in contrast to express consent, where the agreement is directly and clearly given with explicit words. 

Examples of implied consent

Here are some examples of implied consent leading to creation of contracts – 

  • For instance, when you drop off your garments at a dry-cleaning company, you provide the cleaner with implied consent to clean your clothes in exchange for monetary consideration. The cleaner will clean your garments, and you will be charged for the service. Though no specific agreement is made, the act of dropping off the garments and collecting them once cleaned suggests or implies consent to the transaction’s conditions and leads to the creation of a contract.
  • When you shop at a supermarket and put products in your basket, you are entering into an implied contract to buy those items at the advertised prices, the presence of those items on the shelves is an invitation to offer and not an offer in and of itself. By advancing to the checkout counter, you are expressing your agreement to purchase and pay for the products. Thus, your actions signify your consent, making the consent an implied one.

Cases on implied consent in contract law

Role of implied consent in a principal-agent relationship

A principal-agent relationship is required to establish the degree of liability of the parties upon breach of a contract. The acts committed by the agent are considered to be done by the principal, and hence the breach can also be attributed to being done by the principal. Following the legal maxim ‘Qui facit per alium facit per se’, he who acts through another does the act himself. 

In LIC v. Rajiv Kumar Bhasker, (2005) the divisional bench held that the relationship between the principal and agent is based not on a contractual basis but on a consensual basis. This consent may be either express or implied and can be concluded by the court to be present despite the parties expressly professing the absence of such a relationship. 

The relationship comes into existence upon the consent of the principal and the agent; however, it must be noted that this consent is not required to be on the subject of the creation of such a relationship but on the evidence that the agent and principal both agree on facts on which the law imposes consequences resulting from such agency. Here such an agreement provides implicit consent, evident from the actions of the parties.

Role of implied consent in the operation of patients 

In the Indian scenario, the majority of people  below the poverty line requiring medical help are either illiterate or semi-illiterate. They are unable to understand complex legal terms, procedures, or medical concepts. In such a situation, the consent so provided is implied by the lack of adequate knowledge of what is being consented to. The court in such cases may choose to judicially apply implied consent for the benefit of the aggrieved party. 

In Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka, (2009), the issue arose when, due to negligence in a surgical operation, a patient aged 20 years suffered from acute paraplegia  (paralysis of the lower half of the body). Here, the consent for the surgery was treated as implied by the medical practitioners, as the complainant had consented to an excision biopsy. However, the Supreme Court held that mere consent for a biopsy cannot be treated as implied consent for surgery unless the situation is exceptional.

These exceptional situations are where there is an impending issue that has rendered the patient incapable of providing consent, and the continuation of the issue can lead to permanent damage or loss of life. For example, in cases of brain haemorrhage, road accidents leading to excessive bleeding, accidental consumption of toxins, etc.,  medical practitioners can operate on the patient based on implied consent to save the person’s life. 

Challenging implied consent in court

Implied consent can be disputed, especially if one party claims that the circumstances or acts do not actually suggest consent. Legal issues may emerge as to whether implied consent was present and legitimate in a certain context. In the case of Ram Bihari Lal v. Dr. J. N. Srivastava(1985), Kantidevi, wife of the plaintiff Ram Bihari Lal, was operated on by the defendant for appendicitis after a suggestion for the same was given by the defendant; however, upon incisions for the surgery, it was found that the appendix was not at all inflamed; instead, the defendant noticed that the gall bladder was blackish and filled with stones. The defendant, without the express consent of the husband, who was waiting outside the operating theatre, removed the gall bladder of the patient. Only after the operation was completed was the information about the removal given to the plaintiff. Later, the patient Kantidevi died a few days later due to the wrong call of the doctor. The defendant argued that because there was consent for the surgery, there was also implied consent for the removal; however, the court held otherwise and awarded damages to the plaintiff. 

Bar on the use of implied consent 

In certain situations, Courts have expressly barred the use of implied consent to avoid litigation challenging the same. For example, let us consider Duli Chand v. Jagmender Dass, (1990) 1 SCC 169. In the case, the respondent, with the implied consent of the appellant sub-let the premises rented from the appellant to a firm. 

Here, the Supreme Court ruled that it was necessary for the tenant to obtain consent in writing for the purpose of subletting the premises. The consent shall also relate to the specifics of subletting or parting with possession. The court observed that this ratio was to serve a public purpose, i.e., to avoid disputes as to whether there was consent or not, and mere permission or implied consent would not do.

In another case,Ghisalal v. Dhapubai, (2011) 2 SCC 298, the Supreme Court held that the consent of the wife for the adoption of a child must be express; it should be either in writing or by a positive act voluntarily and willingly done by the wife. In reference to the case, During the adoption of Ghisalal, which was being performed in the presence of the husband Gopalji, the wife Dhapubai was absent and was on the terrace of the house spectating along with other women. Her presence in the ceremony was merely that of a mute observer, not an active participant. Dhapubai’s consent cannot be considered to be implied just because she was spectating the adoption and did not protest expressly against it.

Jurisprudence of implied consent in foreign countries

In recent years, Germany has seen an increased focus on the notion of express consent within contractual agreements, particularly when it comes to digital platforms and online services rendered by sites. The legal dispute between the Federation of German Consumer Organisations (Federation) and Facebook emphasises the growing necessity of gaining explicit and informed permission from users. The Regional Court of Berlin’s decision in the Federation’s action against Facebook is an important step towards increasing the demand for express permission in contracts, particularly those regarding data privacy and user rights. The court’s judgement highlights the importance of organisations providing thorough information and ensuring that users are fully aware of the use of information taken from them before providing consent for the same.

The court’s analysis in the Facebook case revolved around the idea of “informed consent.” The court in Berlin concluded that the simple agreement of asking to bring about changes in default settings cannot be considered informed consent, especially if users are not made clearly and actively aware of these options throughout the registration process. This position is consistent with the larger view that consumers should be able to make free and uncoerced decisions when consenting to the use of their personal data or activating specific functionalities. Furthermore, the court’s decision that consent statements must be transparent reflects a new legal requirement that contract conditions be clear.

United States jurisprudence 

American states, being part of a federal country, have differences in their respective jurisprudence regarding the use of implied consent. Let us consider the role of implied consent with regards to employment contracts. It embodies a legal concept wherein an employee’s actions in the duties and obligations associated with their employment are implicitly interpreted as conferring consent to specific workplace policies, regulations, or responsibilities. The underlying principle rests on the premise that an employee’s continuous engagement within the organisation and understanding the nature of their employment signifies such consent. For example, employees are frequently thought to have impliedly consented to the prevailing at-will nature of their engagement, where termination can occur at any moment, with or without cause, by accepting employment and continuing to work.

Jurisprudence in common law countries

Countries following common law systems including UK and Australia rely heavily on precedents when adjudicating matters on the presence of implied consent. Courts also look into the reasonablity of consequences faced by the party giving alleged implied consent to a contract to decide the validity of the consent given. Courts may also infer consent based on the parties’ conduct, trade customs, or industry practices. 

The limits of implied consent have come under more scrutiny recently as a result of technological improvements and the advent of social media giants, particularly in the context of digital and data privacy.Similar to regulations of Germany, the GDPR (General Data Protection Regulation,2016) in the UK and the Privacy Act, 1988 in Australia are two examples of data protection regulations that have been put into effect in the two countries that emphasise the necessity of explicit and informed consent, especially when collecting and processing personal data.

Conclusion 

Implied consent plays an important role in creating contractual relationships. The different types of consent, whether explicit or implied, delineate the ways in which individuals can express their agreements. Examples such as supermarket purchases and laundry agreements illustrate how implied consent operates in practice; they also show how implicit agreements are formed during routine commercial transactions as well as in nuanced dynamics within principal-agent relationships. Implied consent’s applicability differs based on jurisdiction. Jurisprudential developments in countries like Germany, where there is growing emphasis on the use of explicit consent, exemplify the evolving dynamics of consent within modern contractual relationships. In conclusion, the concept of implied consent underscores its enduring relevance across diverse jurisdictions and legal spheres.

Frequently Asked Questions 

What is the difference between implicit and express consent?

Express consent refers to the expression of the consent in words be it written or spoken, meanwhile implied consent refers to interpreting consent through the action or behaviour of the parties giving consent

Is it possible for implicit consent to be legally binding?

Implied consent can be legally binding. It depends on the courts to consider whether the action or behaviour can be held to be indicative of consent given by parties to a contract.

References

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