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Coercive Consent: The Law in Some Asean Jurisdictions
Published online by Cambridge University Press: 21 May 2009
Extract
The idea that voluntariness is at the heart of all self-assumed obligations is perhaps the undeniable hallmark of every developed legal system. Hence, virtually all legal systems place great emphasis on the need to establish the voluntariness of consent in contracts, being as they are, a species of voluntarily assumed obligations. Indeed, in virtually all developed legal systems specific rules have been evolved and formulated to give effect to the notion of free consent. However, even if the need and desire for consent to be voluntary and unencumbered by any vitiating factor is generally universal, what constitutes a factor having the effect of vitiating the freeness of a consent is undoubtedly less universal and more inclined to be a function of both culture and religion. This article will attempt to discuss and compare the varied notions of free consent in the different legal systems of some selected ASEAN countries from the perspective of the impact of coercion on consent. It will eventually become apparent that the deep-seated legal tradition that most of these ASEAN countries inherited from their colonial past is now undergoing a gradual transformation, in particular actuated and greatly animated by the need to re-examine and re-evaluate existing rules to make them relevant to popular and indigenous norms and value systems.
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- Research Article
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- Copyright © T.M.C. Asser Press 1996
Footnotes
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Associate Professor of Comparative Commercial Law, Pertanian University, Malaysia.
References
1. In Malaysia, a current concern among scholars and jurists is the need to help evolve a truly Malaysian common law, something based on but quite independent of and to some great necessary extent different from the English common law. Implicit in this is of course a call for a review of existing notions and concepts which no larger correspond with the cultural and historical realities of the indigenous population. Most prominent among the advocates of this new common law is Malaysia's leading legal scholar, Professor Ahmad Ibrahim. See A. Ibrahim, ‘Common Law in Malaysia’, a paper presented at the National Law Seminar, Kuala Lumpur, in June 1989. The former Lord President of Malaysia, the highest judicial officer of the country, has likewise expressed similar opinion; see Hamid, T.A., LP, in ‘Common Law – Mitos atau Reality?’ (Common Law – A Myth or Reality?) (1990) Jun. 2 KANUN 2, 1–13Google Scholar. In Indonesia, the illustrious names of Van Vollenhoven and Van Eysinga are an indelible preface to any meaningful histroy of the survival of Adat law in the face of the Dutch policy of Concordance. Thanks to them Adat law survived to this day and is now gaining increased relevance in the Indonesian legal tradition. See Subekti, Pembinaan Hukum, Nasional (1981) and also S. Hartono, In Search of New Legal Principles (1982). In the Philippines, despite the strong and what appears to be inexorable Iberian and American legacies, the present Civil Code of the Philippines is approximately only 25% Spanish, 32% amended and 43% entirely new, incorporating Filipino customs; see Feliciano, M.S., ‘The Legal System of the Philippines’, in The Legal Systems in the ASEAN Region, ASEAN Law Association Publication (1987)Google Scholar.
2. Tradition is used here in a sense different from the system of which it is the outcome. A legal tradition generally is ‘a set of deeply rooted historically conditioned attitudes about law, the role of law in the society and polity … about the way law should be made, applied, studied, perfected and taught’. Merryman, J.H., The Civil Law Tradition, 2nd edn. (1985)Google Scholar.
3. David, R. and Brierly, J., Major Legal Systems in the World Today, 2nd edn. (1978) pp. 21 and 31Google Scholar.
4. See the Report of the Philippines Code Commission, p. 135.
5. S. 14 Contract Act, 1950.
6. Art. 1324 KUHPer.
7. Art. 1322 KUHPer.
8. Art. 1328 KUHPer.
9. Art. 1331 PCC.
10. Art. 1335 PCC.
11. Ibid.
12. Art. 1337 PCC.
13. Art. 1338 PCC.
14. See the opinions of Sinnadurai, V. in Law of Contract in Malaysia and Singapore (1979) p. 206Google Scholar. Also the case of Kanhaya Lai v. National Bank of India, Ltd., ILR (1913) 40 CI. 598Google Scholar.
15. (1988)2 MLJ 117. See also Hussain, Shaik Mohd. Noor Alambin S.M., ‘Pre-Contractual Fairness: Sections 15 and 16 of the Malaysian Contracts Act, 1950’, 2 MLJ (1993) p. cxxiGoogle Scholar.
16. The judge took a most prudent approach because when the Contracts Act 19S0 is translated into Malay, the national language, section 73 would likewise be translated into Malay and it is certainly unthinkable to interpret ‘coercion’ (by then in its Malay version — ‘paksaan’) ‘as an ordinary English word’!
17. Vales v. Villa, 35 Phil. 769.
18. See Subekti, , Hukum Perjanjian (1987) p. 23Google Scholar.
19. Zweigert, K. and Kotz, H., Introduction to Comparative Law, Vol. II (translated by Weir, T.) (1987) p. 110Google Scholar. As stated earlier, the Indonesian KUHPer is of Western origin, hence the similarity.
20. It must be noted that notion of ‘reverential fear’ is a direct transplant from the original codes, namely the Dutch East Indies Civil Code for Indonesia and the Spanish Civil Code for the Philippines. Nevertheless, the notion is most accommodative of oriental values where family chastisement and filial piety are honourably acceptable.
21. 64 Phil. 588.
22. The Malaysian experience in this regard is well-argued in the case of Malaysian French Bank Bhd v. Abdullah bin Mohd. Yusof & Ors. (1991)Google Scholar 2 MCJ 495 where it was held, following a Canadian authority, Bank of Montreal v. Jane Jacques Stuart & Anor (1991)Google Scholar AC 120 that undue influence exercised by a person not privy to the contract, on one of the parties to the contract, can amount to undue influence as statutorily defined in section 16 of the Contracts Act, 1950. This decision appears to be the first attempt to extend the scope of undue influence and we will have to wait and see how it will be received in future. See Hussain, loc. cit. n. 15.
23. See generally Said, E.W., Culture and Imperialism (1993) p. 73Google Scholar who speaks of this attitude current among literary writers during the heyday of Western imperialism. In reality such an attitude also permeated among the scholars of the colonised population. It governed their perspective of the greatness of the imperial power and all its institutions, including the legal system.