AN ANALYSIS OF THE CONCEPT OF COERCION
IN THE LEGAL PERSPECTIVE
By:
ATIQUE
TAHIR
Assistant Professor
Faculty of Shariah & Law
International Islamic University
INTRODUCTION
Coercion is one of the subjects
of the law of contract and the law of contract is that branch of law which
determines the circumstances in which a promise shall be legally binding on the
persons making it.
The general rule of contract is
based upon the conception that the parties have by an agreement, created legal
rights and obligations which depend on the free consent of the parties. But if by any way that consent is missing it
will not be considered as a valid transaction or a deal entered into by the
parties. The coercion is one of the
factors by which the consent of the party to a contract is taken without his
free will and independent judgment, which consequently affect the legal
foundation of the contract.
When the parties they enter
into a contact by their own free will, it creates rights and obligations
between the parties, enforceable at law. Otherwise, the contract is not
considered to be valid and enforceable.
The present treatise is about
this factor, the 'Coercion' which affects the legal foundation of a
contract. We will begin our discussion
on the topic under the headings as below:-
1.
Coercion-
its Meaning and Concept
2.
Effect
Of Coercion:
3.
Prosecution,
Threat Of:
4.
threat
to commit suicide:
5.
Threat
To Commit Otherwise a Lawful Act:
6.
Proof
Of Coercion:
7.
Burden
Of Proof:
8.
Detention
Of Property:
9.
Comparison
With English Law:
10.
Duress
Of Goods In English Law:
11.
Recent
Developments In the Concept Of Duress(coercion):
12.
Conclusion:
COERCION- Its MEANING AND
CONCEPT
Literally coercion mean zabardasti in Urdu and use of force or threatening of it in
English i.e. to compel a person to do something by use of force or under a
threat to use the force, without his will.(1) Thus it implies that fear is the
motive which coerces the will of a person and every transaction in that sense
is regarded as voidable, which the party was bound to
enter into, without his independent intelligence under some fear of use of
force against him or threat of that violence, by the other party.(2)
Technically, it is defined by
Section 15 of the Contract Act as:
"Coercion is the committing or threatening to
commit any act forbidden by the Pakistan Penal Code, (also by I.P.C) 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 (3)
This definition of coercion
reveals the following modes of its execution:
1.
By
committing an act forbidden by P.P.C (I.P.C) (for example a threat to shoot,
murder, intimidation, threat to cause hurt, rape, defamation, suicide are the acts forbidden by P.P.C (I.P.C), for
this see the relevant Sections of the Act).
2.
By
threatening to commit any act forbidden by P.P.C (I.P.C).(4)
3.
By
detaining the property.
4.
By
threatening to detain the property (5)
Thus we can say in the light of
above discussion, firstly, that where an individual is induced to enter into a
contract by means of pressure brought to bear upon him so as to influence his
independent judgments, the agreement will be considered as made under coercion
and the court will refuse to enforce that contract. Secondly, to find whether an act constitutes
coercion, it is necessary to determine whether the act in question amounts to
an offence under the Pakistan Penal Code. For example intimidation is an
offence under the Pakistan Penal Code, and if a man is made to acknowledge a
debt by intimidation the acknowledgement is ineffective. (6)
It has been decided in the case
titled Muthia vs. Karuppan
that the principal who was compelled to execute the release deed was made under
coercion. The facts of the case were that an agent refused to hand over the
accounts books of the business to the new agent sent in his place, unless, the
principal released him from all liabilities. The principal had to give a
release deed as demanded. (7)
In another case, titled Ranganaya Kamma vs. Alwar Setti, a madrasi gentleman died leaving a young widow. The relative
of the deceased threatened the widow to adopt the son of the deceased;
otherwise they would not allow her to remove the dead body of her husband for
cremation. The widow adopted the son of her deceased husband but subsequently
applied for the cancellation of the adoption. It was held that her consent was
not free but was taken under coercion; as a result the adoption was set aside.
EFFECT OF COERCION:
A contract brought about by
coercion is voidable at the option of the party whose
consent was so caused. (8) This means that the agreed party may either exercise
the option to affirm the transaction and hold the other party bound by it, or
repudiate the transaction by exercising a right of recession and if the agreed
party opts to rescind the contract he must restore any benefit received by
him.(9)
PROSECUTION, THREAT OF:
The mere fact that an agreement
was entered under fear of criminal or civil proceedings is not sufficient to
avoid the liability on the ground of coercion. (10) In this regard it has been
decided by the Karachi High Court that a creditor who threatened his debtor to
involve him in a criminal case, was not a ground of coercion. (11)
This is the position of law on
coercion in
In the case titled mutual
Finance Company Ltd v John Wetton & Sons Ltd, a
guaranty was obtained from a family Co, under an implied threat to prosecute a
member of the family for the alleged forgery of a pervious guarantee. The guarantor knew that at the time it was
given, the father of the alleged forger was so ill that the shock of a
prosecution of his son was like to endanger his life. The guarantee was held to be invalid.
(13)
THREAT TO COMMIT SUICIDE:
Neither suicide nor threat to
commit suicide is punishable both under the
THREAT TO COMMIT
OTHERWISE A LAWFUL ACT
As a general rule a threat to
commit to do something which comes
within the ambit of some one's right will not amount to coercion, for example,
to demand heavy profit to enter into a new contract does not constitute duress.
(15) However, under certain circumstance a threat to do something which is
otherwise perfectly lawful may amount to coercion, if it is coupled with the
demand which goes substantially beyond what is normal or legitimate in
commercial transaction. The exercise of a right which calculated seriously to
injure other party's interest may be considered a blackmailing and
coercion.(16) As a general rule,
however, it is true to say that a
contact will not be rendered void by reason of the use of pressure for which
someone is legally entitled to exercise.
It has been decided in many of
the recent cases that if someone has paid money under a threat amounting to
blackmail or to rescind a contract entered into by using a tool of threat it
may be recoverable under the plea of coercion or duress. (17) English courts do
not give effect to an agreement obtained by threat amounting to blackmail,
although in one sense the blackmailer may only be threatening to do some act
which he is lawfully entitled to do. (18)
In the case titled Royal Boskalis Westminster NY vs. Mountain Lord Scarman remarks as:
“Duress can of course exist even if the threat is one
of lawful action, it does depend on the nature of the demand. Blackmail is
often a demand supported by a threat to do what is lawful" (19)
PROOF OF COERCION:
The question of coercion is one
of fact depending upon the circumstances of each case (20) Mere suspicion or probability of the
existence of coercion cannot take the place of proof. There must be actual
proof to support the plea of coercion (21)
Moreover, the question whether
a transaction was induced by coercion is mixed question of law and fact. The question whether the essential
ingredients are present in a particular case, is one of fact. But the question
whether the fact averred and established made out a case of coercion is one of
law. (22)
When allegation of coercion is
pleaded against a party, it has to be proved in the manner as that of the
allegations of fraud i.e. it is to be proved through strong and independent
evidence (23)
In the case titled Dilbar Hussain Hashmi vs. Muslim Commercial Bank,
In an other case titled Alla-ud-Din Butt Vs. Qamar-ud-Din Butt – a suit was filed by the plaintiff on
the basis of agreement for declaring him as owner of the shop to the extent of
one half share. Defendant’s plea was that his signatures on the agreement had
been obtained on pistol point, thus not binding upon him. Held, "the
defendant failed to discharge burden to prove his sole and specific defence of coercion applied upon him.Thus
the party which alleges coercion must give particular of all facts which go to
prove coercion and establish it. It is
possible for the court to find coercion if all its essential ingredients have
made out before it". (24)
BURDEN OF PROOF:
Burden to prove coercion lies
on the person alleging it. (25) In the case titled Agha
Fabrics (Pvt.) Ltd. Vs. Union Bank Limited the plea taken by the appellants was
that in order to avail
cash finance facility from the bank they were subjected to duress in issuing
letters acknowledging their debts towards the bank, but the nature of duress
was not specified by the appellants either in arguments or earlier before the
Banking Court and no legal proceedings either civil or criminal were initiated
by the appellants to complain about the said duress. The defence
of duress was not accepted, as the appellants have been failed to prove it.
Their appeal, therefore, was dismissed by the Court. (26)
In the case titled Pakistan
Railways Vs. Javaid Nasim
the Court held that "the
plea of coercion and strain could not be established by the
contractor as the contractor received the payment of final bill without raising
objection regarding payment for the additional work allegedly done by
him". (27)
In an other
case titled Islam-ud-Din Taimuri
vs. Esmail Muhammad Bahi the
defendant took the plea of coercion and undue influence by the authorities,
while putting his signature on the cheque in
question. It was held by the court that as his version has not been challenged
in cross examination, therefore, his plea in question was
established and proved. (28)
What appears to us in the light
of the decisions of the court in the cases mentioned above is that the coercion
has been recognized by the Pakistani courts as a defence.
But if the person, who alleges coercion, fails to prove and establish it before
the court of law, he is not entitled for any remedy. In the instant case the
defendant has been failed to prove coercion i.e. why no remedy was provided to
him by the Court of Law. (29)
DETENTION OF PROPERTY:
Seizure or detention of
property even if it has been made under a colour of
some right, amounts to coercion. (30) In a case titled Bansraj
vs. the Secretary of the State the government gave a threat of attachment
against the property for the recovery of fine due from the plaintiff’s son. The
plaintiff paid the fine under this threat. It was held by the Court that the
payment of fine was induced by coercion and therefore, the plaintiff was
entitled to recover the money paid for the purpose of removing wrongful
attachment. (31)
In another case titled Superintendent
Engineer Irrigation Department v Progress Eng Co. it has been held that a
refusal by a government department to release the payment of the contractor
unless he gave up his claim for extra rates, amounting to coercion under the
category of detention of property. (32)
Again in the case titled Asstley
vs. Reynolds the plaintiff pledged his plate with the defendant for £20. When
he went to redeem it the pledgee insisted that an
additional £10 interest was also due. The plaintiff paid this to redeem his
plate and then sued to recover it back. The court allowed it on the ground that
the extra payment made by the plaintiff was under coercion, without his free
will. (33)
COMPARISON WITH ENGLISH LAW:
The term applied for coercion
in English law is duress which means “actual violence or threat of violence to
a person” (34) Duress in English law means that an act or threat must be aimed
at the life or liberty of the party coerced or the members of his family. But a
threat to destroy or detain property will not amount to duress; as duress means
“destroying another free will by one party obtaining consent to a contract as a
result of wrongful threat to do the other person or family members some harm”.
(35)
In a case titled Skeate vs. Beale a tenant agreed that his landlord would
withdraw a distress for £19 10s in respect of rent. He would pay £
37s 6 d immediately and the remainder £162 s 6
d. The tenant pleaded that the distress was wrongful, since only £ 37s
6 d was due and that
the landlord threatened to sell the goods at once unless agreement was made.
This plea was dismissed. (36) In other case titled Atlee vs. Backhouse it was
held that "For duress to afford a
ground of relief, it must be duress of man’s person not of his goods"
(37).
In English law, if a person is not a party to
a contract, then in this case it is necessary to establish that this very
person was a relative of the intimidated person making the contract. Only then
it will be considered as an operative duress. Thus a threat to injure one’s
parent, child, husband, wife, brother, aunt, grandchild or son-in-law may be
duress. (38) This trend of the English courts is manifested in majority of its
decisions .However, in some recent cases the court has taken a contrary view,
and has been held by it that a threat to a stranger it may also constitute
duress (coercion).
On the basis of above
discussion, it is possible for us to conclude that according to the modern
English law it is not necessary to establish a relationship with a person
threatened to be injured to prove duress.
The question is merely one of whether a threat to kill or seriously
assault a companion who is in no way related to the person entering into the
agreement can operate as duress.
In
In English law generally, a
threat of economic loss such as a threat to prevent a contractor from securing
further credit necessary to obtain building materials is not regarded as
duress. As it has been held in the case
titled that Loral, a contractor who was forced to agree to a price increase in
the original contract, in order to get a new contract by the United States
Navy, was not entitled for any legal remedy for this duress. (40)
DURESS OF GOODS IN
ENGLISH LAW
The traditional view of English
law on duress is that duress of goods i.e. unlawful detention of goods of a man
or threatening of it is not considered as a valid ground for the avoidance of
liability or repudiation of the contact.
However, it is the trend of the English Courts for many years that it
has been recognizing a right of the possession of goods, wrongfully detained,
and as such it has given recognition to the duress of goods. In the case titled
Maskell v Horner tools were levied on the plaintiff
under a threat of seizure of goods.
Their payment were held to be recoverable as it has been made to avoid
seizure of the goods and the plaintiff was entitled to recover the payments
which he had made under the illegal demand. (41) Lord Reading C. J said
"if a person pays money which he is not bound to
pay, under the compulsion of urgent and pressing necessity or seizure, actual
or threatened of goods, he can recover it" (42)
RECENT DEVELOPMENTS IN THE CONCEPT OF DURESS
(Coercion):
The original common law concept
of duress was very narrow one. It was restricted to actual use of force or
threatening of it against the person, a party to the contract. In a case titled Cumming Vs.
Inc a housemaid was ordered by his mistress to submit to a medical examination
on suspicion of pregnancy which turned out to be unfounded. She cried and
protested but submitted. It was held that it was not a case of duress as no
physical violence was threatened or inflicted and she had consented to the
examination.(43)
This was the position of
English law until recent times. The common law concept of duress was restricted
to the physical violence or threat of it to a person. But the case of Sibeon and the Sibotre
illustrates a much wider concept of duress obtained currently. In the case it
was held that duress may occur even against a person who has been coerced to
enter into a contract under a threat to economic loss. (44) In a case titled the Atlantic Baron C in
which the Shipholders had contracted to build a super
market for an agreed price payable by installments. Under a threat of failing
to complete the ship, the builders forced the purchaser to pay an extra 10% on
all contracts after the first. It was held by the court that this constituted
duress. (45)
In another case titled
Occidental World Wide Investment Corp v Skibs A/S Avanti it has been held that a threat to destroy or damage
property could amount to duress. The
facts of the case were that the chatterers of two ships secured a negotiation
of the rate of hire, after a slum in the market rates, by threatening the
owners that they had no substantial assets, and they would go bankrupt if the rates
were not lowered. It was proved on the
basis of facts provided before the Court that chatterers claim was false and
fraudulent. |On the basis of these facts kerr J Held
that the owners were therefore, entitled to avoid the re-negotiated terms.
(46)
Though in many of the recent
cases the common law courts have given relief for economic loss considering it
as a valid ground for duress, but all it is done on equity basis. Its effect
even today is not wholly clear (47)
CONCLUSION:
Thus to conclude our discussion
on 'Coercion' it is possible for us to state that it stands for:
1. Use of force or threatening of it, in
order to compel a person to enter into a contract.
2. In English law this threat to use a
force may be against a person who is a party to the contract or it may be
against a person who is not a party to the contract but is a relative of the
person coerced. However, according to Pakistani and Indian laws it is not
necessary to constitute coercion that it must be against the person who is a
party or his near and dear. It may be against a stranger.
3. A mere threat to start criminal or civil proceedings against a
person does not constitute coercion in Pakistani and Indian law. However, the
trend of European courts is that the threat of a criminal prosecution is
considered to be a coercion .This is revealed by the majority of European
court's decisions.
4. Neither a suicide nor threat to commit
suicide amounts to coercion both in Indian and Pakistani laws .However only an
attempt to commit suicide amounts to
coercion according to these laws.
5. Until recent times the common law
concept of duress was restricted to the physical violence or threat of it to a
person only, it was not recognizing any threat to property. However, the modern
trend of the English courts is that it recognizes a threat to economic loss as
well. Whereas the Indian and Pakistani law on coercion is much widened as
compared to English law. It recognizes
coercion against a person and the property both and economic loss as well.
6.
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