Published online by Cambridge University Press: 30 January 2013
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.
1 See generally, Watson, A, Legal Transplants: An Approach to Comparative Law (University of Georgia Press 1993)Google Scholar; Foster, N, ‘Transmigration and Transferability of Commercial Law in a Globalized World’ in Harding, AJ and Örücü, E (eds), Comparative Law in the 21st Century (Kluwer Law International 2002) 55Google Scholar; Graziadei, M, ‘Comparative Law as the Study of Transplants and Receptions’ in Reimann, M and Zimmerman, R., The Oxford Handbook of Comparative Law (OUP 2007)Google Scholar.
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).
3 Legrand, P, ‘The Impossibility of “Legal Transplants”’ (1997) 4 Maastricht Journal of European Comparative Law 111CrossRefGoogle Scholar; see also Friedman, L, A History of American Law (2nd edn, Simon and Schuster 1985) 595Google Scholar; and numerous quotes in Watson, A, Society and Legal Change (Scottish Academic Press 1977) 3–4Google Scholar.
4 See the distinction between ‘strong Watson’ and ‘weak Watson’ in Ewald, W, ‘Comparative Jurisprudence (II): the Logic of Legal Transplants’ (1995) 43 AJCL 489CrossRefGoogle Scholar.
5 Some 20 books and 100 articles detailed in Ewald, ibid.
6 See eg Watson, A, ‘Comparative Law and Legal Change’ (1978) 37 CLJ 313CrossRefGoogle Scholar.
7 ibid 321.
8 Teubner, G, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergencies’ (1998) 61 MLR 15CrossRefGoogle Scholar.
9 A Watson, ‘Ius Communis Lecture on European Private Law 2’ (The Contribution of Mixed Legal Systems to European Private Law, Maastricht University, 18 May 2000).
10 Harding, A and Örücü, E, Comparative Law in the 21st Century (Kluwer Law International 2002)Google Scholar ch 4, 55.
11 An example of an excellent case study is Teubner (n 8).
12 ibid 12.
13 Örücü, E, ‘Law as Transposition’ (2002) 52 ICLQ 206–7Google Scholar. See also Langer, M, ‘From Legal Transplants to Legal Translations’ (2004) 45 HJIL 1Google Scholar, discussing post-transplant evolution in the context of plea bargaining in criminal trials.
14 See generally, Phang, ABL, The Development of Singapore Law (Butterworths 1990)Google Scholar.
15 (Cap 7A, 1994 Rev Ed).
16 One rare exception in the law of contract is the Singapore Court of Appeal decision in Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2; [2005] 1 SLR 502 which rejected the position in the English Court of Appeal decision on equity's jurisdiction in the case of unilateral mistake in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407, [2003] QB 679, [2002] 4 All ER 689. Another is the recent rejection of Lord Hoffmann's approach to remoteness of loss in The Achilleas [2008] UKHL 48; the Singapore Court of Appeal in MFM Restaurants Pte Ltd v. Fish & Co Restaurants Pte Ltd [2010] SGCA 36; [2011] 1 SLR 150, preferring the traditional approach set out in Hadley v Baxendale [1854] EWHC Exch J70.
17 Phang (n 14) 6, 63, 84, 151.
18 Royal Bank of Scotland v Etridge [2001] UKHL 44, [2002] AC 773.
19 ibid [2].
20 ibid [6]–[7]; see also R v Attorney-General for England and Wales [2003] UKPC 22 [21].
21 Allcard v Skinner (1887) LR 36 Ch D 145, 171; See also Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 953 (BCCI v Aboody); Barclays Bank v O'Brien [1994] 1 AC 180 HL, 189–90.
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).
25 eg Rajabali Jumabhoy & Ors v Ameerali R Jumabhoy & Ors [1997] 3 SLR 802; Overseas-Chinese Banking Corp Ltd v Chng Sock Lee & Anor [2001] 4 SLR 370; Bank of India v Sujanani Thakur Rochiram & Ors [1999] SGHC 185; Standard Chartered Bank v Uniden Systems (S) Pte Ltd [2003] 2 SLR 385; Malayan Banking Bhd v Hwang Rose and others [1997] SGCA 10; ING Bank NV v Inselatu Co Pte Ltd & Ors [2000] SGHC 81; Susilawati v American Express Bank Ltd [2008] 1 SLR 237, [2007] SGHC 179; Oversea-Chinese Banking Corp Ltd v Tan Teck Khong and Another (Committee of the Estate of Pang Jong Wan, Mentally Disordered) and Others [2005] 2 SLR 694; [2005] SGHC 61; Bank of East Asia v Mody Sonal M [2004] 4 SLR 113.
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).
60 Etridge (n 18) [48]–[49].
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63 Berkowitz, D, Pistor, K and Richard, JF, ‘The Transplant Effect’ (2003) 51 AJCL 164CrossRefGoogle Scholar; see also Örücü (n 13) 214. According to The Singapore Academy of Law overview of the Singapore legal system (at section 1.3.1): ‘Singapore has inherited the English common law tradition and thus enjoys the attendant benefits of stability, certainty and internationalisation inherent in the British system (particularly in the commercial sphere).’ See Singapore Academy of Law, ‘Overview’ in The Laws of Singapore (2012) <http://www.singaporelaw.sg/content/LegalSyst1.html#Section3> accessed 23 March 2012.
64 Watson, Society and Legal Change (n 3) 98ff.
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.
66 Phang (n 14) 66–71, 118–60.
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68 Teubner (n 8) 16.
70 See Khan-Freund, O, ‘On Uses and Misuses of Comparative Law’ in Khan-Freund, (ed), Selected Writings (Stevens 1978)Google Scholar 298ff. He distinguishes between legal institutions that are effectively insulated from culture and society (‘mechanical’) and those that are culturally deeply embedded (‘organic’).
71 Teubner (n 8) 18.
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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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85 Wei-Ming Tu (n 83) 3.
86 WH Slote, ‘Psychocultural Dynamics within the Confucian Family’ in Slote and DeVos (n 83) 38.
87 EC Kuo, ‘Confucianism and the Chinese Family in Singapore: Continuities and Changes’ in Slote and DeVos (n 83) 244–6.
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.
90 Traditionally Chinese women are expected to obey their fathers before marriage, their husbands after marriage, and their sons after their husbands die.
91 Kuo, ‘Confucianism and the Chinese Family in Singapore: Continuities and Changes’ (n 87) 231.
92 Hamilton, GG, ‘Patriarchy, Patrimonialism, and Filial Piety: A Comparison of China and Western Europe’ (1990) 41 British Journal of Sociology 77CrossRefGoogle Scholar.
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)).
96 Analects 13.18, in which Confucius says that uprightness is found in sons and fathers covering up for each other. In this case, at least, loyalty to parents or to children takes precedence over loyalty to ruler or to public justice.
97 DK Jordan, ‘Filial Piety in Taiwanese Popular Thought’ in Slote and DeVos (n 83) 268.
98 Slote (n 86) 37.
99 Hamilton (n 92) 85.
100 Children could be prosecuted for being unfilial and, in the last dynasties, fathers would go unpunished if they killed their sons for being unfilial, even if they did so inhumanely. The same trend in legal severity is true for the husband's power over his wife, ibid 86–7.
101 ibid 92.
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.
103 Ihara, CK, ‘Are Individual Rights Necessary? A Confucian Perspective’ in Shun, Kwong-loi and Wong, DB (eds), Confucian Ethics: A Comparative Study of Self, Autonomy, and Community (Cambridge University Press 2004) 11, 30Google Scholar.
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107 Hamilton (n 92) 77, 94–6.
108 Bellah (n 104) 94.
109 From Cheng Hao (AD1032–1085) quoted in Hsu, Dau-lin, ‘The Myth of the “Five Human Relations” of Confucius’ (1970–71) 29 Monumenta Serica 27, 33Google Scholar.
110 Analects 1.2.
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112 Wei-Ming Tu (n 83) 3, 13.
114 Slote (n 86) 44.
115 David Wong, ‘Chinese Ethics’, The Stanford Encyclopedia of Philosophy (Fall edn, 2008) <http://plato.stanford.edu/archives/fall2008/entries/ethics-chinese/> accessed 11 February 2012.
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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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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.
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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.
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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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