Pao On v Lau Yiu Long

Pao On v Lau Yiu Long
Court Privy Council
Citation(s) [1979] UKPC 2, [1980] AC 614, [1979] HKLR 225
Case opinions
Lord Scarman
Keywords
Consideration, economic duress, commercial pressure

Pao On v Lau Yiu Long [1979] UKPC 2 is a contract law appeal case from the Court of Appeal of Hong Kong decided by the Privy Council, concerning duress.

Facts

Fu Chip Investment Co Ltd, a newly public company majority owned by Yiu-Long Lau and his younger brother Benjamin (the defendants), wished to buy a building called 'Wing On', owned by Tsuen Wan Shing On Estate Co. Ltd., whose majority shareholder was On Pao and family (the claimants). Instead of simply selling the building for cash, Lau and Pao did a swap deal for the shares in their companies. Tseun Wan would get 4.2m $1 shares in Fu Chip, and Fu Chip bought all the shares of Tsuen Wan. To ensure the share price of Fu Chip suffered no shock, Pao agreed to not sell 60% of the shares for at least one year. Also, in case the share price dropped in that year, Lau agreed to buy 60% of the shares back from Pao at $2.50. But then Pao realised, if the share price rose over $2.50 in the year, the price would stay fixed and he would not get the gains. So he demanded that instead of that, Lau would merely indemnify Pao if the share price fell below $2.50. Pao made clear that unless he got this "guarantee agreement", he would not complete the main contract. It was signed on 4 May 1973. But as it turned out the shares did slump in value. Pao tried to enforce the guarantee agreement. Lau argued the guarantee agreement was not valid (1) because there was no consideration, only in the past and under a pre-existing duty, and (2) because it was a contract procured by duress.

Advice

Lord Scarman, giving the Privy Council’s advice first disposed of the question about past consideration, because a promise to perform a pre-existing contractual obligation to a third party can be good consideration.[1] The question of whether consideration can be invalidated ‘if there has been a threat to repudiate a pre-existing contractual obligation or an unfair use of a dominating bargaining position’ was rejected because ‘where businessmen are negotiating at arm’s length it is unnecessary for the achievement of justice’.

On the point of duress, Lord Scarman held the following.[2]

“ There must be present some factor ‘which could in law be regarded as a coercion of his will so as to vitiate his consent.’ This conception is in line with what was said in this Board's decision in Barton v Armstrong [1976] AC 104, 121 by Lord Wilberforce and Lord Simon of Glaisdale - observations with which the majority judgment appears to be in agreement. In determining whether there was a coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it. All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. ”

This was commercial pressure and no more, since the company really just wanted to avoid adverse publicity. For a general doctrine of economic duress, it must be shown ‘the victim’s consent to the contract was not a voluntary act on his part… provided always that the basis of such recognition is that it must amount to a coercion of will, which vitiates consent.’

See also

Notes

  1. ↑ see Restatement of the Law, Contracts, ch 3, s 84(d) and NZ Shipping Co Ltd v A M Satterthwaite & Co Ltd
  2. ↑ [1980] AC 614, 635

References