ThREAT - THE ROLE OF COERCION UNDER UAE LAW
It is almost universally accepted, both in law and with consideration of morals that agreements entered into under coercion cannot, at all, be considered binding. Thus one is not obligated to keep, and the law will not enforce, a contract you undertake to save your life at gunpoint. So, what is the theory behind the invalidation of contracts that one has been coerced into? Most explanations that follow note that coercion strips the voluntary nature of an agreement, whether that is in a more or psychological sense. These explanations conclude that an agreement which one has been coerced into does not reflect the coerced party's will. Alternatively, scholars argue that contracts with a coercive element should never be enforced as they would encourage the negative action of coercion.
Coercion, in its general sense, can be described as the intimidation of a person in which they are compelled to perform an act against their will by the use of psychological pressure, physical force, or threats. Legitimately, from a juridical perspective, coercion can be considered as a deed against another upon which satisfaction is either denied or their choice corrupted.
A perception of controlling or coercive behavior
Before probing deeper, let us understand the scenario behind the understanding of controlling or coercive behavior. Coercive behavior can be described as a method of harming, punishing, or freighting a victim, by using a pattern of continuous acts such as humiliation, threats, assault, or any other abuse. Such behavior does not necessarily have to be ascribed to a single incident. Rather, a pattern of incidents where purposeful behavior takes place by an individual over a period to exert control, coercion, or power over another person is sufficient. These types of offenses focus its responsibility and accountability on the perpetrator who has willfully chosen to carry out these compelling behaviors.
The Coercive Will
It is apparent that from the beginning of time that the human mind is considered to be a great mystery and is one that intrigues men of science. It can be well argued that a human's will is unpredictable in a world that is bound by strict necessity. Humans are individualists in a systematic universe. The will cannot be quantified by physical science nor can it be managed. It may only be carefully coaxed while it is utterly impalpable, it is quite capable of managing the physical world about it.
As such, it is not hard to fathom that the will itself, is considered as the essential and most important pillar in concluding contracts leading to the conclusion of the contract. It is imperative in determining the legal implications upon which the contract is based. For the actions done by will to be correct, they must be done by a free will, devoid of any defects which deny, restrict or affect this will. When it comes to a contract of law, coercion in this context can be described as a defense which comes about when one party enjoys an ascendant position opposed to the other party and abuses this position by subjecting the other party to threats.
The law has regulated the defects of the satisfaction of the will as it is the cornerstone of contracts and legal transactions. One such defect was the defect of coercion, and this defect was tackled by the Penal Law and the Civil Transactions Law, as coercion is penalized upon by the Penal Code if it amounts to a certain degree. However, the point of discussion in this Article is the coercion in the contracting field. Satisfaction is thus considered as one of the essential pillars of the contract as without it there is no correct contract. Thus the contractor should have the will to complete the contract and by practicing the coercion upon him and his will vanishes, which result in the nullity of the contract. – Article Number 182 of Civil Transaction Law.
Also, a divorce contract which occurs under the effect of coercion is considered null as the presence of a free will and choice is required in the imposition of a divorce. It was stated in the judgment of the Dubai Court of Cassation on 24 June 2008in the Appeal Number 2008/41 Personal Status Appeal:
The text in the first clause of the Article 101 of Personal Status Law that "mind and choice are required in absolute terms" denotes – and as the explanatory memorandum of the law illustrated – that the mind and choice is necessary for absolute terms. Because who has no mind or choice doesn't realize the interest for which divorce was constituted therefore his divorce does not occur if he was crazy, loony or compelled.
There are two kinds of coercion; one kind of them denies the will of its subject and is referred to as physical coercion, and the other undermines the will and is called moral coercion.
Physical coercion occurs when someone is compelled to conclude an action or do something using physical force which he cannot resist and has no way to repel, thus paralyzing his will and depriving him of the will of freedom of choice. Since physical coercion is considered as one of the force majeure cases which are done by human beings, it grabs the satisfaction by force and not by dread. In such case, the action done by the compelled person is void and ineffective when the coercion inflicted him is confirmed. As for moral coercion, it can be described as a threat directed from one person to another upon which a psychological state of fear and dread compels the later to accept what he otherwise would not accept voluntarily. This is also apparent when the person forcing the other party threatens the coerced to physically or psychologically hurt them or a member of their family. Imperative to note is that for coercion to be considered as valid, the threat alone on the part of the compeller is not sufficient. The compelled must be aware that the party forcing is capable of imposing the actual threat. Also, factors such as the status, strength, weakness, and position of person all play a role in the magnitude of the coercion. The threat of a small, weak child to a big strong man for example or the threat of a beating by a disabled husband to his wife, are thus not considered as coercion.
It can be established that the important difference between physical and moral coercion lies in the fact that the will, in the case of the physical coercion, is paralyzed or blind as if it did not exist entirely. However, the will, in the event of moral coercion, exists but is defective and corruptive as its holder has the option to choose between the lightest of the two damages or easiest of the two evils. By either accepting to conclude the action or enduring the danger of the threat which may is implemented by himself or one of his loved ones. From this perspective, examples of moral coercion may be the action of directing a weapon towards a person, threatening a person if he doesn't sign a particular contract by threatening or abusing one of his family members. It may also be threatening a woman with assault if she doesn't acknowledge a particular commitment or threatening her by divorce if she doesn't waive her expedited dowry or decreasing her postponed dowry. Another example is a threat to financial management to a person by seizing his money if he doesn't pay a non-payable amount.
Assessing the means of coercion
The intent of the coercion should result in an illegal purpose; hence if it is legal, the coercion is not achieved. For example, when it comes to forcing the person to repay a debt which he owes, upon which repayment is eventually made, this does not result in legitimate coercion. Assessing, the means of coercion and the amount of its magnitude as well as its effect on the psyche of the contractor is one of the subject matter issues which the specific court is exclusive to adjudicate on when basing its judgment on the reasonable evidence. The Dubai Court of Cassation decision dated 18 April 2010 in the Appeal Number 2010/76 civil appeal stated that: it is decided by the judiciary of this court and according to what Article 176 of the Civil Transaction Law says – that “coercion is forcing a person unfairly to do something without his satisfaction. Meaning that coercion is not achieved unless the intent is for an illegal purpose. Moreover, It is required that the coercion evokes a dread in the psyche which makes the doer act unsatisfactorily. And the burden of proof is on the claimant. Also, inspecting the occurrence or non-occurrence of the coercion shall be enforced by the authority of the subject matter without being commented on by the court of cassation when its deduction is reasonable.”
The question arises, when does coercion become urgent? Urgent coercion can be prevalent in cases where the coercion is a threat of a grave danger inflicted against the psyche or money of the compelled. Occurring in instances where for example, the members of a personal family are threatened of being killed, or there is a threat of seizing their money/belongings, resulting in a situation where the compelled finds no other means out except to obey what is ordered upon him by the party coercing. Coercion, on the other hand, maybe non-urgent in other cases. As the Dubai court of cassation dated 9 November 2003 in the Appeal Number 2003/47 appeal rights that – it is decided that “coercion, which blemishes the satisfaction, is according to the 176 and 177 of the Civil Transaction Law – is compelling a person unfairly to do something without his satisfaction. Coercion becomes urgent or non-urgent as it becomes physical or moral, and coercion becomes urgent if an imminent grave danger inflicts the psyche or money, and it becomes non-urgent if it was a threat in other cases.”
Burden of Proof
When it comes to the burden of proving the coercion, it shall rest on the compelled who receives the coercion. Hence one cannot adhere to the occurrence of the coercion unless he can prove so by all means in the provision of documents, the testimony of the witnesses and clues as well as the other evidence of proof. The subject matter Court has the right to inspect the occurrence or non-occurrence of coercion without being commented on in case that its deduction is based on reasonable reasons by the court of cassation.
Also, Dubai Court of Cassation on 20 May 2007 in the Appeal Number 2007/66 Civil Appeal adjudicated that – it is decided – “that the burden, of proving the occurrence of coercion as one of the defects of the satisfaction, shall be the responsibility of the person claiming. And because the deduction of the occurrence or non-occurrence of coercion is the authority of subject matter court, their reasons shall be reasonable in this regard and are confirmed in the papers.”
So if the coercion is proven, then the act which was done as a result of the coercion shall be inefficient, such as concluding a contract or concluding conciliation under the effect of coercion. However, it is not permissible for the compelled to adhere to the inefficiency of the contract or the conciliation before he proves that the coercion was done by the other contractor or he knew about that coercion. Also, Article 184 of the Civil Transaction Law states that – if the coercion was done by someone other than the contractors, the person who was compelled to contract has no right to adhere to the inefficiency of the contract. The only instance where they would be compelled do so is if it is not proven that the other contractor knew or he was supposed to know about such coercion.
Moreover, Article 64 of the Penal Code stated as follows – whoever committed a crime necessitated by the necessity of protecting himself, his money or the self or money of others from a grave danger is about to occur, and his will has nothing to do with its occurrence, is not criminally responsible. Also, whoever had to commit a crime due to a physical or moral coercion is not criminally liable. In the two cases set out in the two clauses above it is required that the offender is not capable of preventing the danger in another way and that the crime is significant enough to repel it and that it is suitable for it. Finally, in cases providing proof of coercion and threat towards the compelled, the person coercing shall be subject to criminal prosecution. However, it is essential on the part of the compelled as well, that he/she raises a penal claim against the person coercing, thus punishing the latter for the offense committed either personally, psychologically or upon on any of the members of his family or any other accusation as set out by the Penal Code.
It can be understood that if conditions of coercion are found, the effect would be the rescinding or cancellation of the entire contract. When a contract is rescinded, the contract and the subsequent agreement are canceled in its entirety. Thus, both parties are released from their obligations to perform any contract duties as contained in the agreement.
From any perspective, man has to learn that he cannot command things, but rather, he can command himself; he cannot coerce others, but he can mold and be the master of his will. Ironically speaking, a man's natural duty to make all contracts that are intrinsically binding and to coerce the fulfillment of them should be considered as one of the most sacred and indispensable of all human possessions.
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