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LEGAL TRANSPLANT AND UNDUE INFLUENCE: LOST IN TRANSLATION OR A WORKING MISUNDERSTANDING?

Published online by Cambridge University Press:  30 January 2013

Mindy Chen-Wishart
Mindy Chen-Wishart*
Affiliation:
Merton College, Oxford University, National University of Singapore (fractional), [email protected].
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Abstract

Is legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer owes less to grand theories than to a careful examination of the nature of the transplanted law and the relationship between the formal and informal legal orders of the originating and the recipient society raised by the particular transplant.

Keywords

comparativecontractguaranteelegal transplantSingaporeundue influence
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 1 , January 2013 , pp. 1 - 30
Copyright
Copyright © British Institute of International and Comparative Law 2013

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References

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2 eg the Principles of European Contract Law (PECL); the Draft Common Frame of Reference (DCFR); the Common European Sales Law (CESL); the Principles of International Commercial Contracts (PICC); and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

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11 An example of an excellent case study is Teubner (n 8).

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22 Etridge (n 18) [13], [16], [17].

23 Allcard v Skinner, (n 21), (at 171) sets out two categories of undue influence, which, despite the refinements by Etridge, remain substantially intact. These categories are affirmed in BCCI v Aboody, (n 21), at 953 and Barclays Bank v O'Brien, (n 21) at 189–90. In class 1 cases the claimant can prove that the defendant's positive application of pressure induced his consent to the contract.

24 In class 2 cases undue influence is presumed from the claimant's proof that: (a) she was in a ‘relationship of trust and confidence’ with the defendant (Class 2A covers specified relationships where the influence is automatically presumed, class 2B describes relationships outside Class 2A where the existence of influence must be proved), and (b) the resulting transaction is manifestly disadvantageous to the claimant. It is then up to the defendant to rebut the presumption by proof that the claimant nevertheless entered the transaction freely (usually by evidence of the presence of independent advice).

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26 Barclays Bank v O'Brien (n 21).

27 ING Bank NV v Inselatu Co Pte Ltd (n 25), [21].

28 Allcard (n 21).

29 Reported in Etridge (n 18), [4], [90], [123], [130], [282]–[293].

30 ibid [130], [284], [291].

31 ibid [284].

32 ibid [291].

33 Reported in Etridge (n 18) [4], [90], [97], [123], [131], [310]–[351].

34 Etridge [312].

35 BCCI v Aboody (n 21); the court declined relief because it found that the wife would have agreed even if the husband had insured that she fully understood the risks. The flaw in this reasoning is that it obstructs the finding of undue influence in the cases where it is most needed. See (n 57–8) below.

36 The bank insisted on offering the wife independent advice in the absence of her husband. While this was happening, the husband burst into the room in a high state of excitement and said, ‘Why the hell don't you get on with what you are paid to do and witness her signature?’ There followed a scene which reduced the wife to tears. The advisor certified that the wife understood the transaction, but added: ‘Husband is a bully. Under pressure and she wants peace.’ A further attendance note read: ‘Both our proposals were rejected out of hand by your husband … Your husband very rude and overbearing but you seemed to be quite content to submit and expressed your confidence in the business.’

37 Oversea-Chinese Banking Corp v Chng Sock Lee & Anor (n 25).

38 ibid [14].

39 ibid.

40 ibid [16].

41 ibid [15].

42 ibid [15], [17].

43 Bank of East Asia v Mody Sonal M (n 25); see also Gan Cheng Chan v Gan Meng Hui.

44 Bank of East Asia v Mody Sonal M [18].

45 ibid [12].

46 ibid [19].

47 ibid [17]; see also Orix Capital Ltd v Personal Representative(s) of the Estate of Lim Chor Pee (deceased) [2009] SGHC 201, [2009] 4 SLR 1062, [81]–[85].

48 ibid [12].

49 Standard Chartered Bank v Uniden Systems (S) Pte Ltd (n 25).

50 ibid [72].

51 ibid [68].

52 ibid [70]–[71], [73].

53 ibid [74].

54 ibid [69].

55 Despite frequent use of words like ‘impropriety’, ‘abuse’, ‘betrayal’, ‘wrong-doing’, ‘reprehensible’, ‘fault’ Arden LJ has confirmed in Jennings v Cairns, In the Estate of Davidge [2003] EWCA Civ 1935 (at [40]) that ‘the fact that the conduct of the person exercising influence is unimpeachable is not by itself an answer to a claim in undue influence’.

56 Etridge (n 18) [20]; however, the court also said, obiter, at [159], that a wife's support is the ‘natural and admirable consequence of the relationship of a mutually loyal married couple’, it is readily explicable in terms of her normal trust and confidence in her husband. In Allcard v Skinner, (n 21), the nun knew what was expected of her before she joined the sisterhood (her mother and barrister brother had opposed her action). The judges recognized that everything she did came out of her own willing submission and enthusiastic devotion to the life and work of the sisterhood. Nevertheless, the doctrine protects her.

57 Credit Lyonnais Bank Nederland v Burch [1997] 1 All ER 144 CA.

58 Bank of Montreal v Stuart [1911] AC 120, 137.

59 O‘Brien (n 21).

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65 Glanert, S ‘Speaking Language to Law: The Case of Europe’ (2008) 28 Legal Studies 161CrossRefGoogle Scholar emphasizes the importance of common language, but also of local character and legal experience, for any uniformization (harmonization) of laws.

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77 See Singapore's Women's Charter 1961, Ordinance No. 18 of 1961; now Cap. 353, 2009 Rev. Ed.

78 Harding (n 62) 49.

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81 Buddhists comprise 33 per cent, 17 per cent have no religion, 13 per cent Christians, 15 per cent are Muslims, 11 per cent are Taoists, 5.1 per cent are Hindus and 0.9 per cent are other beliefs; ibid.

82 First language speakers are 50 per cent Chinese, 32.3 per cent English, 12.2 per cent Malay and 3.3 per cent Tamil. English is the first language of the nation and is the language of business, government and medium of instruction in schools. The Singapore constitution and all laws are written in English. Of Singaporeans 80 per cent are literate in English as either their first or second language; ibid.

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88 Hence the widely accepted idea of the social contract as the basis of political authority, famously found in Hobbes' Leviathan (1651), Locke's Second Treatise on Government (1689) and Rousseau's Du Contrat Social (1762); and more recently, Rawls' idea of what can be agreed from the original position behind the veil of ignorance in Theory of Justice (Belknap Press 1971).

89 Where you are in the hierarchy is expressed in an elaborate terminology of titles and honorifics that ensures everyone knows exactly where they stand in relation to everyone else.

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93 It is the fifth of the Ten Commandments in Christianity, Exodus 20:1–21, and Deuteronomy 5:1–23.

94 The Analects 2.6 says to give parents no cause for anxiety; 2.7, emphasizes the need for the material support of parents to be carried out in a respectful manner; 2.8 emphasizes that it is the expression on one's face that is filial and not just taking on the burden of work or letting elders partake of the wine and food before others.

95 If the child believes that parents are wrong and their wishes run contrary to what is right or good, Analects 4.18 says that one should remonstrate with them gently. Most translations have Confucius concluding that if parents are not persuaded, one should not oppose them (eg Dim Cheuk Lau (Penguin 1979); Edward Slingerland (Hackett 2003); Arthur Waley (MacMillan 1938)).

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102 Analects 1.15 likens the project of cultivating one's character to crafting something fine from raw material: cutting bone, polishing or grinding a piece of jade. In this project, ritual plays a central part. This includes the ceremonies of ancestor worship, the burial of parents, and the rules governing respectful and appropriate behaviour between parents and children. All to be done with the right attitude, in the right manner and without internal conflict until it becomes second nature.

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108 Bellah (n 104) 94.

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110 Analects 1.2.

111 The Chinese have very elaborate kinship terminology system for properly addressing the person with whom they interact. All relatives have a specific title: Father's eldest brother, second maternal aunt, third younger paternal uncle's wife and so on.

112 Wei-Ming Tu (n 83) 3, 13.

113 Slote (n 86) 43–4. Hamilton makes the same point by comparing the straw in the haystack with a stone thrown in a lake causing ripples; see Hamilton (n 92) 98–9 citing Fei Xiaotong in a little-known and untranslated book on rural China: Xiangtu Zhongguo (Joint Publishing Company 1986).

114 Slote (n 86) 44.

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132 Credit Lyonnais Bank Nederland v Burch (n 57)

133 She had sometimes baby-sat and visited his family in London and Italy.

134 Credit Lyonnais Bank Nederland v Burch (n 57) 152.

135 ibid 154–55.

136 Hong Leong Finance Ltd v Tay Keow Neo and Another [1992] 1 SLR 205.

137 ibid 218.

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143 The White Paper Shared Values (Singapore National Printers, Cmd 1 of 1991) was presented to Parliament on 5 January 1991. A nationwide debate followed as well as in Parliament; the House adopted the five statements as the nation's Shared Values on 15 January 1991.

144 Prime Minister Lee Hsien Lung, '2012 Chinese New Year Message’ (15 Jan 2012) <http://www.pmo.gov.sg/content/pmosite/mediacentre/speechesninterviews/primeminister/2012/January/prime_minister_2012_chinesenewyearmessage.html> accessed on 23 March 2012.

145 Mr Chan Chun Sing, ‘Foreword’ in National Family Council State of the Family Report (2011) <http://www.nfc.org.sg/pdf/Requestor_SOFR%202011%20Cicada%20v8%20Final.pdf> accessed on 23 March 2012.

146 White Paper on Singapore's Shared Values (n 143) 8.

147 Straits Times, 24 April 1990, 3.

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153 Lee Kuan Yew v Seow Khee Leng [1988] SGHC 78, [1988] 2 SLR 252, [1989] 1 Malayan LJ 172, [25].

154 See Kuo, ‘Confucianism and the Chinese Family in Singapore : Continuities and Changes’ (n 87).

155 Kuo, ‘Confucianism as Political Discourse in Singapore: The Case of an Incomplete Revitalization Movement’ (n 140) 301.

156 See the discussion in Birks, P and Chin, NN, ‘On the Nature of Undue Influence’ in Beatson, J and Friedmann, D (eds), Good Faith and Fault in Contract Law (Clarendon Press 1995) 57Google Scholar.

157 ibid; Bigwood, R, ‘Undue Influence: “Impaired Consent” or “Wicked Exploitation”’ 16 OJLS 503CrossRefGoogle Scholar; Bigwood, R, ‘Contracts by Unfair Advantage: From Exploitation to Transactional Neglect’ (2005) 23 OJLS 65CrossRefGoogle Scholar.

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159 Allcard (n 21) 190.

160 Etridge (n 18) [9].

161 Teubner (n 8) 18.

162 Harding (n 61) 199; ‘South East Asia … [is] an ideal laboratory. The region has an abundance of legal traditions, practically all of them having been “received” in one sense or another, and encompassing all the world's major legal world-views and systems. If the crossroads of legal traditions are nodal points where comparatists are to be found, then one ought to be tripping over them in South East Asia.’

163 Harding (n 62) 12.

164 ibid 40.

165 Compare, for example, Invercargill City Council v Hamlin (1994) 3 NZLR 513, [1996] AC 264 where the Privy Council expressly allowed for the possibility that a House of Lords decision on the law of negligence may be adjusted to suit the general local pattern of socio-economic behaviour in New Zealand.

166 Geertz, C, ‘Local Knowledge: Fact and Law in Comparative Perspective’ (1983) 175 Local Knowledge: Further Essays in Interpretive Anthropology 215Google Scholar.

167 In Pek Nam Kee v Peh Lam Kong [1994] SGHC 163 D induced his step-siblings to sign a deed of family arrangement on their parents' death. D duped them out of their fair share by, inter alia, actual and presumed undue influence—some, and implied threats that division of the estate would be held up indefinitely and they would not receive the money they badly needed if they did not sign. In Che Som bte Yip and others v aha Pte Ltd and others [1989] SGHC 62 a man obtained a guarantee from his mentally unsound younger brother.

168 Tan Teck Khong and another v Tan Pian Meng [2002] SGHC 152 and Oversea-Chinese Banking Corp Ltd v Tan Teck Khong and another (committee of the estate of Pang Jong Wan, mentally disordered) and others [2005] SGHC 61, [2005] 2 SLR(R) 694. In contrast, no undue influence was found against the benefiting child in Hooi Cheng Kwong Michael and another v Hooi Cheng Cheong Paul [1980] SGHC 35 where the inequality was explicable; the mother's will merely corrected previous inequality (when the defendant obtained considerably less under the father's will). Nor in Susilawati v American Express Bank Ltd [2007] SGHC 179, [2008] 1 SLR 237, where the wealthy and independent claimant supported her son-in-law's borrowing in order to support her daughter; she only complained when her daughter's marriage foundered.

169 Mookka Pillai Rajagopal and another v Khushvinder Singh Chopra [1996] SGCA 58.

170 In Etridge (n 18) [34], Lord Nicholls points out that 95 per cent of all businesses in the UK are small businesses responsible for about one-third of all employment and their most important source of finance is bank loans raised by second mortgages on the domestic home.

171 Bank of India v Sujanani Thakur Rochiram & Ors [1999] SGHC 185.

172 ibid [13].

173 ibid [34].

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