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duress and coercion

Submitted by

M.Vishal anaand
Reg. No. BC0150033

Under the Guidance of

Ms.golda shaoo
Assistant Professor

TAMIL NADU NATIONAL LAW SCHOOL

(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu 620 009

MS.golda sahoo Assistant Professor in law of contracts -1

Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

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 CERTIFICATE

This is to certify that the project work entitled duress and coercion is a bonafide record of

the research work done by (M.vishal anand), under my supervision and guidance. It has not been

submitted by any other University for the award of any degree, diploma, associate ship, fellowship

or for any other similar recognition.

Place: Tiruchirappalli

Date:

Signature of the Guide

M.vishal anand
Reg. No. BC0150033 II Year B.COM. LLB. (Hons.)
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

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 DECLARATION

I, M.vishal anand, do hereby declare that the project entitled duress and

coercion submitted to Tamilnadu National Law School in partial fulfillment of

requirement for award of degree in Under Graduate in Law to Tamilnadu National Law

School, Tiruchirappalli, is my original research work. It and has not been formed basis for

award of any degree or diploma or fellowship or any other title to any other candidate of

any university.

Counter Signed Signature of the Candidate

Project Guide

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 ACKNOWLEDGEMENT
At the outset, I take this opportunity to thank my Professor Ms.golda sahoo from the

bottom of my heart who has been of immense help during moments of anxiety and torpidity while

the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Dr.KAMALA

CHANDRAN and the administrative staff of TNNLS who held the project in high esteem by

providing reliable information in the form of library infrastructure and database connections in

times of need.

Thirdly, the contribution made by my parents and friends by foregoing their precious time

is unforgettable and highly solicited. Their valuable advice and timely supervision paved the way

for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront all hurdles

during the making of this project. Words arent sufficient to acknowledge the tremendous

contributions of various people involved in this project, as I know Words are Poor Comforters.

I once again wholeheartedly and earnestly thank all the people who were involved directly or

indirectly during this project making which helped me to come out with flying colors.

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 DURESS AND COERCION

RESEARCH QUESTIONS

1. What is Coercion and Duress?

2. What is the Difference between Coercion and Duress?
3. Scope of Coercion and Duress?

INTRODUCTION

Coercion can be defined as It is the committing, or threatening to commit, any act forbidden by
the Indian 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. Coercion is the practice of compelling a person or manipulating them to behave in an
involuntary way (whether through action or inaction) by use of threats, intimidation or some other
form of pressure or force. Coercion may involve the actual infliction of physical or psychological
harm in order to enhance the credibility of a threat. The threat of further harm may then lead to
the cooperation or obedience of the person being coerced. The term is often associated with
circumstances which involve the unethical use of threats or harm to achieve some objective.
Coercion may also serve as a form of justification for a conclusion in a logical fallacy or non-
logical argument. Coercion may also refer to more subtle means of influence such as sweet
talking, begging, charming, and seduction.

WHAT IS COERCION?

Coercion defined as, Coercion is the committing, or threatening to commit, any act forbidden
by the Indian Penal Code (45 of 1860), 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 any agreement.1 Coercion is the practice of compelling a person or manipulating them to

1
Section 15 of Indian Contract Act, 1872.

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behave in an involuntary way (whether through action or inaction) by use of
threats, intimidation or some other form of pressure or force. Coercion may involve the actual
infliction of physical or psychological harm in order to enhance the credibility of a threat. The
threat of further harm may then lead to the cooperation or obedience of the person being coerced.
Any persons set of feasible choices is obtained from the combination of two elements: the initial
endowment (the perceived initial state of the world, which the chosen actions are going to affect)
and the transformation rules (which state how any chosen action will change the initial
endowment, according to the persons perception). It follows that coercion could in principle take
place by purposely manipulating either the transformation rules or the initial endowment (or both).
In practice, however, the detailed choice reaction of a victim to a change in initial endowment is
generally unpredictable. Hence effective coercion can only be carried out through manipulation of
the transformation rules. This is done by the credible threat of some injury, conditional on the
victims choice. Often, it involves the actual inflicting of injury in order to make the
threat credible, but it is the threat of (further) injury which brings about the change in
transformation rules.

Coercion does not remove entirely the victims ability to choose, nor does it necessarily
affect his or her ranking of potential alternatives. As Roman jurists used to say, coactus volui,
tamen volui (I willed under coercion, but still I willed). In the terminology of rational
choice theory, coercion does not remove a persons objective function, but only affects
the constraints under which such function is maximised. Yet, the purpose of coercion is to
substitute ones aims to those of the victim. For this reason, many social philosophers have
considered coercion as the polar opposite to freedom.
Various forms of coercion are distinguished: first on the basis of the kind of injury threatened,
second according to its aims and scope, and finally according to its effects, from which its legal,
social, and ethical implications mostly depend.

Illustration

A, on board an English ship on the high seas, causes B to enter into an agreement by
an act amounting to criminal intimidation under the Indian Penal Code (45 of
1860).A afterwards sues B for breach of contract at Calcutta. A has employed

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 coercion, although his act is not an offence by the law of England, and although section
506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place
where the act was done.

TECHNIQUE OF CAUSING COERCION

1. Committing or threatening to commit any act forbidden by the Indian Penal Code, or,
2. Unlawfully detaining to threatening to detain any property.

EXTENT OF COERCION UNDER THE ACT

The words of this section are far wider than anything which then existed in the English authorities;
it must be assumed that this was intended. As the definition stands the coercion invalidating a
contract need not proceed from a party to a contract2 or be immediately directed against a person
whom it is intended to cause to enter into the Contract or any member of his household, or affect
his property, or be specifically to his prejudice. This was not so under the earlier English law on
duress The Concept of duress has however been rapidly evolving and these differences no
longer seem to hold. In fact, duress under English law is now perhaps broader than coercion as
defined under the Act, and has been discussed later.

ACTS FORBIDDEN BY IPC

The words act forbidden by the Indian Penal Code make it necessary for the court to, decide in
a civil action, if that branch of the section is relied on, whether the alleged act of coercion is such
as to amount to an offence. The mere fact that an agreement to refer matters in dispute to arbitration
was entered into during the pendency, and in fear, of criminal proceedings is not sufficient to avoid
the agreement on the ground of coercion, though the agreement may be void as oppose to public

2
Chuni Lal v. Maula Bakhsh, 161 IC 347: AIR 1936 Lah 6.

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policy within the meaning of S. 23.3 It must further be shown that the complainant or some other
person on his behalf took advantage of the state of mind of the accused to apply pressure upon him
to procure his consent.4 To threaten a criminal prosecution is not by itself an act which is forbidden
by the Indian Penal Code. Such act could only be forbidden if it amounts to a threat to file a false
charge.5. So if a false charge of criminal trespass is brought against a person and he is coerced into
an agreement give half of his house to complainant the agreement will not be enforced. This was
also the position of common law.6 The rule in equity was however the opposite and a threat by one
party to prosecute the other for a criminal offence could constitute a ground for setting aside a
contract.7 It has been suggested that the rule of equity represents the prevailing position of English
Law.

In a Madras case the question arose whether if a person held out a threat of committing suicide to
his wife and son if they refused to execute a release in his favor, and the wife and son in
consequences of that threat executed the release, the release could be said to have obtained by
coercion within the meaning of this section. Wallis, C.J., and Seshagiri Aiyar, J., answered the
question in the affirmative, holding in effect that though a threat to commit suicide was not
punishable under the Indian Penal Code, it must be deemed to be forbidden, as an attempt to
commit suicide was punishable under the Code (S. 309). Oldfield, J., answered the question in the
negative on the ground that the present section should be construed strictly, and that an act was
not punishable under the Penal Code could not be said to be forbidden by that Code.8 That view
seemed to be correct. The penal code forbids only what it declares punishable.

A demand by workers under the Industrial Dispute Act backed by a threat of Strike being not
illegal, the threat of strike would not amount to coercion. 9Under the language of the section as it
stands, a threat to commit an offence under any law other than the Indian Penal Code 1860, may

3
Gobardhan Das v. Jai Kishen Das, (1990) 22 All 224; Masjidi v. Mussammat Ayisha, (1882) Punj Rec. no. 135.
4
22 All p. 227, citing Jones v. Merionethshire Building Society, (1893) 1 Ch 173.
5
Aksari Mirza v. Bibi Jai Kishori, (1912) 16 IC 334.
6
Williams v. Bayley, (1886) LR 1 HL 200.
7
Mutual Finance Co. Ltd v. John Wetton & Sons Ltd., [1937] 2 KB 389.
8
Amiraju v. Seshama, (1917) 41 Mad 33
9
Workmen of Appin Tea Estate v. Presiding officer, Industrial Officer, Assam, AIR 1966 Gau 115: (1967) II LLJ
371.

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not amount to coercion. Recognising this, the Law Commission of India had recommend a wider
expression to include penal laws other than the Indian Penal Code, 1860.

UNLAWFUL DETAINING OF PROPERTY

A refusal on the part of mortgagee to convey the equity of redemption except on certain terms is
not an unlawful detaining or threatening to detain any property within the meaning of this
section. However, refusal by the outgoing agent, whose term expired, to hand over the account
books to the new incoming agent until, the principal gave him a complete release would amount
to coercion.10

COMPARISON WITH ENGLISH LAW

The following comparison has been attempted by the madras high court. KARUPPAYEE
AMMAL V. KARUPPIAH PILLAI, (1987)1 MAD LJ 138

What the Indian law calls, coercion is called in English law duress or menace. Duress is said
to consist in actual or threatened violence or imprisonment of the contracting party or his wife,
parent or child, by the other party or by anyone in s.15 is much wider and includes the
unlawful detention of property also. Further, coercion may be committed by any person, not
necessarily a party, or his party, or his parent, wife or child. It may be directed against any person,
even immediate violence and also unnerve a person of ordinary firmness of mind, these requests
are not necessary in Indian law.

Under the English law, actual or threatened violence to the victims person has long been
recognized to amount to duress,11 but duress may consists of actual or threatened imprisonment,12
and now also includes wrongful threats to property or threat to seize goods,13 and wrongful or
illegitimate threats to economic interests, where the victim has no alternative but to submit.14 The

10
Muttiah Chettiar v. Karupan Chetti, (1927) 50 Mad 786.
11
Kesarmal v. Valliappa Chettiar, [1954] 1 WLR 380 (PC).
12
Cumming v. Ince, [1847] 11 QB 112 (woman forcibly taken to lunatic asylum); but see Biffin v. Bignell, (1862) 7
H & N 877 (distinction between a threat and a mere warning).
13
North Ocean Shipping Co Ltd. V. Hyundai Construction Co Ltd., [1978] 3 All ER 1170.
14
Pao On v. Lau Yiu, [1979] 3 All ER 65.

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effect of duress is not to make the act of the victim non-voluntarily, nor does it deprive him with
a choice between evils.15 The classic case of duress is, not the lack of will to submit but the
victims intentional submission arising from the realization that there is no practical choice open
to him.16

There has developed tremendous jurisprudence around the concept of duress, especially
economic duress. Devising a test for this concept involves a delicate balancing act for, in a sense,
all contracts are made under pressure- each party threatens the other that unless his terms are
accepted, the other party will not get the reciprocal benefits under the contract. The test in English
law has been to distinguish between legitimate and illegitimate pressures, and only the latter is
said to amount to duress. Threats to commit an otherwise lawful act are ordinary not duress. Thus,
a threat to breach the contracts in order to reach an agreement as to its variation has been generally
regarded as a legitimate commercial pressure, especially where this is the result of an unanticipated
difficulty or based on a bona fide and reasonable belief that unless the demand is met, the party
would unable to perform. If however the threat is immoral or unconscionable, this might be held
to constitute duress. Thus, an unlawful threat by a trade union to continue the boycott of a ship;17
a threat to break an existing contract coupled with unreasonable and overwhelming commercial
pressure; refusal to rescue a vessel in distress or those on board save on extortionate terms; have
all been held to be cases involving duress.

The doctrine of economic duress has also been accepted by the Bombay High Court to be part of
Indian law.18 However to the extent this decision is seen as an authority importing the doctrine of
duress in Indian Law, its correctness is not free from doubt.19

Conclusion

15
Lynch v. DPP, Northern Ireland, [1975] AC 653,690.
16
Universe Tankships of Monrovia v. ITWF, [1983] 1 AC 366, 400 : [1982] 2 All ER 67 (HL)
17
Universe Tankships of Monrovia v. ITWF, [1983] 1 AC 366,400 : [1982] 2 All ER 67 (HL)
18
Dai-Ichi Karkaria Pvt. Ltd. V. ONGC, AIR 1992 Bom 309 (buyer threatened non-performance to make seller
agree to renegotiated terms)
19
See POLLOCK & MULLA, INDIAN CONTRACT ACT AND SPECIFIC RELIEF ACTS (13 th edn, 2006) at p.
437. Substituted by Act 6 of 1899, S. 2

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In most legal systems, the use of physical specific coercion by private individuals is a criminal
offence in all cases not involving self defense or similar situations.

The picture is less simple for psychological specific coercion, owing to the general difficulty in
finding clear evidence for it. In most systems psychological coercion is treated as a criminal
offence when it is aimed at extortion, as is typical of blackmail. It is also punished when it leads
to undue influence, defined as a master-slave relationship.

Finally, economic coercion is generally unlawful under most systems of anti-trust legislation,
where it can amount to either a criminal offence as under the Sherman Act of the US or an
administrative offence liable to a mere fine as under EU legislation on the abuse of a dominant
position. It is important however to remember that trade unions and other groups of organised
workers are mostly exempted from this general principle for acts of economic coercion (like
strikes) against their employer. Legal methods themselves may employ coercion, such as when a
lawsuit is threatened if a person does not comply with the wishes of the plaintiff. Specific coercion
may be used as a legal defence in criminal cases for acts committed under threat of injury.
Similarly, one may claim the legal nullity of a contract signed under duress.

In both cases, however, the question arises of whether a "reasonable person" would have perceived
a threat, and reacted in the same way. Moreover, under most modern legal
systems disciplinary coercion cannot be claimed as an exculpating circumstance for war
crimes committed under unlawful order.

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BIBLIOGRAPHY

1. THE INDIAN CONTRACT ACT BY SIR DINSHAW FARDUNJI MULLA, ISBN

978-81-8038-673-2
2. INDIAN CONTRACT ACT AND SPECIFIC RELIEF ACT BY AVATAR SINGH,
ISBN 93-5028-735-8

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