The Coercion Conundrum
What is coercion in relation to contract
If you look closely under the Contact Act 1950 (the Act), you will find two sections discussing what is coercion.
You will find the first one in section 15 of the Act. Under section 15, the Act defines coercion as the act of committing, or threatening to commit any act forbidden by the 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.
You will find the second one in section 73 of the Act. However, if you were to read section 73, you will notice section 73 does not specifically define what is coercion. Courts intervened and noted that:
- The word is used in its general and ordinary sense as an English word;
- It is not constrained by the definition given by section 15 of the Act; and
- Can be defined in every way possible so long as it is in line with the meaning of the word.
Justice Eusoff Chin in Chin Nam Bee Development Sdn Bhd v Tai Kim Choo & 4 Ors explained why there are two definition of coercion under the Act:
- The Contracts Act 1950 is divided into ten (10) parts. Part III deals with “Of Contracts, Voidable Contracts And Void Agreements”, which contains section 15 of the Act.
- In order to raise coercion under section 15, of the Act, the element of consent (i.e. parties freely consented to the contract) must be available/ not available to a party.
- On the other hand, Part III of the Act, Part VI of the Act deals with matters described as “Of Certain Relations Resembling Those Created By Contract” i.e. agreements which resemble a contract, which contains section 73 of the Act.
- Furthermore, nowhere under section 2, nor anywhere in part III and part VI of the act stated that the meaning of the word “coercion” must be uniform across the board.
- As both sections deal with different scenarios, it would be difficult if the word “coercion” is to be given the same meaning in both of the sections of the Act.
- Therefore, the word “coercion” in the context of Section 73 of the Act should be given its ordinary and general meaning since there is nothing under section 15 which says that the word “coercion” should apply throughout the Act. The definition of “coercion” in section 15 should only apply for the purpose contained in section 14, as Section 14 of the Act specifically says so.
How to determine which to use?
1) Factors in determining whether an act of coercion falls under Section 15 of the Act
The court in Pao On v Lau Yiu Long held as follows:
“In determining whether there was coercion of will such that there was no true consent, it is material to inquire whether, at the time he was allegedly coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or he did not have an alternative course open to him such as adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.”
From the statement above, there are several (but non-exhaustive) factors that a court can take into account, when deciding whether a party was coerced into entering a contract, namely
- Whether the said party protested;
- Whether the said party had a choice to not enter into the contract;
- Whether the said party sought independent advice before entering the contract; or
- Whether the said party took steps to not perform the contract.
2) Factors in determining whether an act of coercion falls under Section 73 of the Act
There are three factors in determining whether there is coercion under section 73 of the Act:
- Is money paid by one party to another/ Did one party deliver item(s) to another party?;
- Was the money paid/ item(s) delivered under coercion?; and
- Is it a coercion scenario (does it fit under a general definition of a coercion)?
All three factors must be satisfied before an act is considered an act of coercion.
So what are the available remedies?
- Coercion under section 15 of the Act – the agreement/ contract voidable at the option of the party whose consent obtained by coercion i.e. the party whose consent obtained by coercion can annul the contract.
- Coercion under section 73 of the Act – A person to whom money has been paid, or anything delivered under coercion, must repay or return it.