LAW OF DURESS IN ISLAMIC LAW AND COMMON LAW: A ...

More documents

Recommendations

Info

316 Islamic Studies, 30:3 (1991) of innocent persom6' In fact, the Common law fails to explain the reason for adopting a standard of duress in civil cases different from that which applies in criminal cases. Other than discussing criminal and civil cases separately, this essay will not structure the discussion around the theoretical categories established, particularly, by Muslim jurists. Rather the focus will be on the specific rules that apply to the different types of acts. Firstly, contractual or civil matters will be examined, secondly, criminal acts such as destruction of property, rape and murder will be examined. Finally, our attention will be turned to the subject of superior orders. CONTRACTUAL <strong>AND</strong> CIVIL ACTS In the modem Common law, duress is recognised only if it overcomes the will of the victim. According to most cases and commentators, the approach is entirely ~ubjective.~' Therefore, section 492 of the Restatement of contracts states: Duress . . . means (a) any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition, or (b) any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgement. If the threat was intended or should reasonably have been expected to operate as an ind~cement.~~ Although, courts frequently speak of a will overcome by duress, and of an entirely subjective approach, evidence showing whether a reasonable person would have felt compelled is pertinent as to whether the victim's will was, in fact, overcome.64 In other words, a court would consider what a reasonable person would have believed or done in order to evalkte the credibility of the victim's claim. This is inconsistent with the entirely subjective standard that the modem Common law claims to follow. In fact, espe- cially in cases involving economic duress,65 as opposed to threats of physical injury, courts often grant relief on public policy grounds such as unjust enrichment, gross unfairness or bad faith dealing by the ~oercer.~~ The Restatement Second of Contracts resolves this discrepancy by abandoning the totally subjective standard. Section 175 provides:
Islamic Studies, 30:3 (1991) 317 If a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim. Hence, in order for duress to exist two prongs must be fulfilled. One, the victim's assent must be induced by an improper threat. -0, there, must be no reasonable alternative left to the victim.67 The assent of the victim is decided through a subjective inquiry.68 Nonetheless, the existence, or lack thereof, of a reasonable alternative is a "mixed question of law and fact, to be answered in clear cases by the court". In summary, the Restatement Second pursues both a subjective and objective inquiry. The feelings and understandings of the duressed are accommodated to an extent. But the reasonableness of the alternatives available to the duressed would be objec- tively determined. One, however, has to admit, as in all areas of the law, that the word "reasonable" is extremely vague. It is not at all clear what does the phrase, "leaves the victim no reasonable alternative" means. Fun- damentally, what is reasonable can only be determined by reference to moral and policy experiences and expectations of society. These are the same considerations that help draw the thin line differentiating hard bargain situ- ations from oppressive and coercive conditions.69 Therefore, the Restate- ment Second seems to open the door for a host of moral and policy deter- minations. Importantly, a determination of the reasonableness of alternatives left to the coerced, threatens to make the subjective inquiry into the duressed's assent largely irrelevant. For example, in Miller v. ~ ikele,~ plaintiff believed that his stock broker made improper charges to plainti£Ps securities account which resulted in additional margin. In order to prevent defendant from selling more of his securities, plaintiff made the margin call payments under protest. The appellate court held that the trial court erred in granting the defendant's motion for non-suit, asserting that there were sdficient factual issues to send the case to the jury. In reaching its decision, the court heavily relied on the fact that plaintiff made these margin call payments during the market crash of 1929. The subsequent depression, the court reasoned, proved the phiintiff prudent in not waiting to sue for the value of his securities. As a practical matter, the fact that the plaintiffs worries proved correct is quite irrelevant as to whether his assent was coerced or whether duress existed. If the depression did not follow, plaintiffs assent would have been equally coerced at the time he made his decision. Ultimately, in asses- sing the reasonableness of the alternatives available to the duressed, one might ignore the assent or feelings of the duressed since these alternatives .could have been unknown to the duressed. Once it is said that a reasonable person should have thought of the alternatives, we are no longer seriously considering, and, in fact we are ignoring, the subjective feelings of the coerced.
Page 1 and 2: Islamic Studies (Islamabad) 30:3 (1
Page 3 and 4: Islamic Studies, 30:3 (1991) 307 ov
Page 5 and 6: Islamic Studies. 30:3 (1991) 309 At
Page 7 and 8: Islamic Studies, 30:3 (1991) 31 1 t
Page 9 and 10: Islamic Studies, 30:3 (1991) 313 Th
Page 11: Islamic Studies, 30:3 (1991) 315 ac
Page 15 and 16: Islamic Studies, 30:3 (1991) 319 th
Page 17 and 18: Islamic Studies, 30:3 (1991) 321 CR
Page 19 and 20: lskmic Studies, 30:3 (1991) 323 of
Page 21 and 22: Islamic Studies, 30:3 (1991) 325 th
Page 23 and 24: lslamic Studies, 30:3 (1991) 327 ki
Page 25 and 26: Islamic Studies, 30:3 (1991) 329 A
Page 27 and 28: lslamic Studies, 30:3 (1991) 33 1 I
Page 29 and 30: Ishmic Studies, 30:3 (1991) 333 und
Page 31 and 32: law of duress is in need of develop
Page 33 and 34: Islamic Studies, 30:3 (1991) 337 sa
Page 35 and 36: Islamic Studies, 30:3 (1991) 339 Se
Page 37 and 38: Islamic Studies, 30:3 (1991) 341 mL
Page 39 and 40: Islamic Studies, 30:3 (1991) 343 Op
Page 41 and 42: klamic Studies, 30:3 (1991) 345 One
Page 43 and 44: Islamic Studies, 30:3 (1991) 347 11
Page 45 and 46: Islamic Studies, 30:3 (1991) 349 Fo

LAW OF DURESS IN ISLAMIC LAW AND COMMON LAW: A ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?