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

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.