Coercion AND Duress PDF

Preview

Summary

Download Coercion AND Duress PDF

Description

COERCION AND DURESS, A COMPARATIVE ANALYSIS

ASSIGNMENT SUBMITTED TO SNIL ON CONTRACT BY ANOUSHKA MISHRA BA.LLB(H) 1ST YEAR REG NO:1841802021

SOA NATIONAL INSTITUTE OF LAW (Deemed to be university)

DECLARATION I Anoushka Mishra hereby declare that this project titled “coercion and duress, a comparative analysis” has been done by me. The words used in it is all mine and there is no plagiarism involved in it.

PREFACE I would like to thank the Dean Mr Prabir Kumar Pattnaik for giving me opportunity to do this project. I would also like to thank my contract teacher Dr, Itishree Mishra for her guidance in this project and giving such an interesting topic to work on. I would also like to thank my parents for providing me with the materials required for the completion of the project.

THANKING YOU ANOUSHKA MISHRA BA.LLB(H) 1ST YEAR

CONTENTS Heading

Page nos.

1.

INTRODUCTION

1

2. 3.

ACT FORBIDDEN BY IPC UNLAWFUL DETAINING OF PROPERTY CONDITIONS WHERE THERE

2

4.

3

IS NO COERCION

4

5.

DURESS

5

6.

COMPARATIVE ANALYSIS

7.

OF COERCION AND DURESS

6

CONCLUSION

7

INTRODUCTION One of the essentials of a valid contract mentioned in sec 10 is that the parties should enter into the contract with their free consent. According to sec 14, consent is said to be free consent when it is not caused by : a.coercion, as defined in sec 15 b.undue influence, as defined in sec 16 c.misrepresentation, as defined in sec 18 d.mistake, subject to provisions of sec 20,21 and 22 Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence , fraud , misrepresentation or mistake.

Coercion According to sec 15, “coercion is the committing, or threatening to commit any act forbidden by the Indian Penal Code, or unlawfully detaining or threatening to detain any property to the prejudice of any person whatsoever, with the intention of causing any person to enter into an agreement”. Coercion is said to be there where the consent of a person has been caused either by: i)Act forbidden by the IPC ii)Unlawful detaining of the property

ACT FORBIDDEN BY THE IPC It has been noted above that if a person commit or threatens to commit an act forbidden by the IPC with a view to obtaining the consent of the other person to an agreement,the consent in such case is deemed to have been obtained by coercion. Example: A threatens to shoot B if B does not agree to sell his property to A at a stated price, B’s consent in this case has been obtained by coercion. In case Ranganayakamma v. Alwar Setti , the question before the Madras High Court was regarding the validity of the adoption of a boy by a widow, aged 13 years. After the death of her husband the widow was asked by her relatives to adopt a boy and the husband’s dead body was not allowed to move out of the house for cremation. Here the consent has been obtained by coercion. So, the adoption of the boy on the widow was not binding. In case Chikkan Ammiraju v. Chikkam Seshama,the question before the Madras court was that threat to commit suicide amounts to coercion. A , a hindu by threat to suicide induced his wife and son to execute a release deed in name of his brother in respect of some properties which was claimed by the wife and the son to be their own. It was held that threat to commit suicide came under the act forbidden by IPC and thus it amounts to be coercion and the release deed is voidable . Also the threat to suicide was not to the prejudice of A but also to the prejudice of the wife and the son.

UNLAWFUL DETAINING OF PROPERTY According to sec 15, coercion could also be caused by 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. Example :if an outgoing agent refuses to hand over the account books to the new agent until the principle executes release in his favour, its coercion.

To the prejudice of a person Section 15 requires that there should be commiting or threatening to commit any act forbidden by IPC, or 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. It means that the act causing coercion should not necessarily be directed against the contracting party, it is enough that the act is to the prejudice of any person whatever, and with the intention of causing any person to enter into an agreement. Example :A detains B’s son C to make B enter into an agreement.

CONDITIONS WHERE THERE IS NO COERCION Threat to strike is no coercion: in Workmen of Appin Tea Estate v.Industrial Tribunal, the demand of the workers for bonus was accepted after a threat of strike. The question which had arisen was whether such a decision between the union of the workers and the Indian Tea Association could be declared void on the ground that there was no coercion. It was held that because of the doctrine of collective bargaining under the industrial disputes act, the demand of the workers could be backed by a threat to strike. Such a threat was neither a threat to commit an offence under IPC nor was it unlawful detaining or threatening to detain any property and hence it did not amount to coercion and as such the agreement was valid.

Statutory compulsion is no coercion:when a statute requires a contract to be entered into, the consent in such a case is not deemed tp be caused by coercion. In Andhra Sugars Ltd. v. State of A.P, if sugar cane grower offered to sell his sugarcane to a factory in a certain zone, the factory was bound to accept the offer under the Andhra Pradesh Sugar cane Act 1961. It was held that such a case even though there was a legal compulsion for the factory to make the agreement,the agreement could not be entered into by the last of free consent and there was no coercion also.

DURESS Duress is under English law.it is actual violence or threat of violence to a person. It only includes fear of loss to life or bodily harm including imprisonment but not a threat of damage of goods. The threat must be to do something illegal. Moreover duress must be directed against a party to the contract or his wife, child, parent or other near relative and also caused by the party to the contract or within his knowledge. As we know threat to good is no duress in English law which is opposite to the Indian law completely. In the case Skeate v. Beale, a landlord threatened to sell his tenant’s goods, having a distress of 19-10sh against the tenant for rent. The landlord withdrew this distress in exchange of tenant paying 3-7 sh -6d immediately and promising to pay the remaining amount of 16-12sh-6d within a month. In an action by the landlord to recover the sum of 16 pounds 2sh-6d. from tenant the tenant pleaded that this promise has been obtained under duress by threatening sale of his property. The tenant’s plea was rejected and he was made to pay the amount in accordance with the promise because threat regarding goods cannot constitute duress. If a person is disposed of his property under illegal threat that unless he parts with the possession, he would be detained under MISA (Maintenance of Internal Security), partying with the property under such threat amounts to coercion under sec 15.

COMPARATIVE ANALYSIS OF COERCION AND DURESS Sl. No. 1.

2.

3.

Coercion Meaning – Coercion is a process by which consent is obtained by threatening to commit an act punishable under the Indian Penal Code 1860. It means making a person to give his consent by force or threat. Section 15 of the Indian Contract Act 1872 defines coercion as "the committing or threatening to commit any act Forbidden by Indian penal code 1872, or the unlawful detaining or threatening to detain, any property to the prejudice of any person whatever the with the intention of causing any person to enter into an agreement".

Duress Meaning – Duress, under Common Law, consists in actual violence or threat of violence to a person. It includes doing an illegal act against a person, whether it is to be crime or tort. Duress is not confined to unlawful acts Forbidden by any specific penal law, like the Indian penal code in India

In India coercion can also be there by detaining or threatening to detain any property. In India, Coercion may proceed from a person who is not a party to the contract, and it may also be directed against a person who again, maybe a stranger to the contract.

In England, duress is constituted by acts or threats against any person of a man and not against his property. In England, duress should proceed from a party to the contract and is also directed against the party to the contract himself, or his wife, parent, child or other near relatives.

CONCLUSION It is nearly universally accepted, both in law and in morals, that agreements entered into under coercion are not binding. Thus you are not obligated to keep, and the law will not enforce, a contract you undertake to save your life at gunpoint. Alternatively, scholars argue that coercive contracts should not be enforced because that would encourage the use of coercion. The terms "duress", "coercion" and "necessity" when used in the criminal law are of uncertain meaning and have on occasions been used synonomously and interchangeably. Whilst they bear an underlying similarity in the sense that they encompass an excuse or justification arising from compulsion to perform a criminal act or omission brought about by some unbearable pressure, the distinction is usually made between compulsion applied by human agency which is called "duress" and that brought about by natural forces or inanimate circumstances which is called "necessity". "Coercion" is distinguished from "duress" in that in law it refers to compulsion which arises in the context of the marriage relationship. (Necessity also has a much wider significance in that it goes beyond compulsion and embraces the idea of weighing competing harms or evils and choosing conduct resulting in the lesser despite its unlawful nature.) Because of the differences which exist it will be convenient and desirable to treat the defences of duress and necessity separately. Generally what will be said about duress applies equally to coercion although as will appear some Separate consideration has to be given to the latter.

BIBLIOGRAPHY 1. ANSON’S LAW OF CONTRACT 2. CONTRACT LAW by AVTAR SINGH 3. INDIAN CONTRACT ACT by Dr. R K BANGIA 4. INDIAN CONTRACT ACT by MULLA...