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

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318 Islamic Studies, 30:3 (1991) It should be emphasised, however, that the approach of the Restate- ment Second does not represent the majority view. The majority of courts insist that the victim's will must be overcome and, consequently, that the inquiry be entirely subjective. In deciding whether the victim's assent was procured by duress, or in the terminology of most cases, whether the victim's will was overcome or not, the lapse of time between the threat and the coerced act only goes to the ultimate issue of fact. In other words, modem Common law, considers the imminence of the threat only as evidence of whether the victim's will has been overcome or not." Threats of harm to property or third parties, for the most part, are also admitted.n However, as to third parties, there is disagreement as to whether only threats to relatives should be recognised or all relationships should be admitted as long as there is affinity between the third party and the coerced person.n Finally, contracts made under duress are normally held to be voidable; they are void only in rare circumstance^.^' For example, if a person threatened by death signs a contract without knowledge of its contents or if a person under the influence of hypnosis signs a contract then these agreements are void rather than voidable. In both these situations, there is a total absence of consent. But in the more common situation, where the party's will has been overcome by duress, the contract is voidable." Islamic Law Islamic law, in many respects, is War to the Common law. As reviewed earlier, when it comes to civil acts, Islamic law recognises both types of duress, compelling and noncompelling. Since all types of duress are recognised, the only remaining question is whether, in fact, the victim felt that he had to assent to the transaction or risk getting harmed. If that is the case, as a matter of legal standard, and moralheligious policy, the transaction will not stand. Hence the inquiry as to the victim's state of mind is subjective. But as mentioned earlier, the law imposes an overriding objec- tive principle of choice of the lesser evil and proportionality. Therefore, if A threatens to destroys B's house unless he signs a condemnation order against ten houses, B cannot do so. The harm inflicted by B exceeds the harm avoided. Similarly if A threatens to destroy B's house unless B signs a condemnation order against Cs house and B is rich but C is poor, and B knows that C is poor, then B cannot inflict the harm. Islamic law incorporates the Common law dodrine that there must be no other alternative through the principle of choosing the lesser evil. If there was a less harmful alternative and the victim failed to pursue it then
Islamic Studies, 30:3 (1991) 319 the lesser of the two evils has not been observed. For example, if the person could have avoided the harm by seeking legal advice or police protection, the victim has a duty to commit the lesserpvil which in this case means seeking legal advice.76 Taken to the extreme, this logic would nullify all claims of duress of goods or, more broadly, most cases of economic duress. For example, in the Miller case the plaintiff's alternative was to refuse to make the demanded payments and sue for breach of contract as well as other grounds rather than claim duress. At one level, Islamic law appears to resolve this problem by pursuing an essentially utilitarian approach. If waiting to sue for breach of contract would cause more harm than an immediate claim of duress, then the lesser of the two evils is to comply with the defendant's demands, and then claim duress. Importantly, however, "harm" is not identified solely by reference to the plaintiff's condition. Rather social and religious policies can enter into defining the extent of An example, taken from outside the context of Islamic law might help demonstrate the point.78 Suppose that A, an already rich individual, is due to inherit a large sum of money from an estate. An unethical lawyer threatens to tie up the estate in court unless A agrees to pay him exorbitant legal fees. A has two options; either he pays the fees now and claim duress later or sue the lawyer immediately and risk receiving his inheritance after a long delay. Since Islamic law does not rely on the logic of an overcome will, it can hold that duress exists because as a matter of public policy, lawyers cannot be permitted to behave in this fashion. In Islamic terminology, litigating the dispute in court is not the lesser evil, since, as a matter of law, allegations of attorney misconduct are a greater and more general evil or harm (erar kuli and not a +rur hiss).79 Interestingly, the Restatement Second in civil cases seems to be closer to the Islamic approach than the traditional Common law. Both are standard- setting or standard-recognising, and both are vague but for different reasons.80 Once duress is found, Muslim jurists could not agree on whether the resulting contract is void or voidable. According to the Hanafis, a defect of duress differs from other contractual defects (like a defect of fraud or mutual mistake) in certain respects. One, the contract could be subsequently invalidated and, two, it could be invalidated even if handled by an innocent purchaser.81 Thus, according to the majority of Hanafi jurists, a sale or contract induced by duress is compt fjiiid), nonetheless, it is enforceable. The victim of duress, however, has the power to subsequently invalidate the contract of sale.82 If the victim of duress eventually attacks the validity of the contract of sale, it becomes void even if there & a third innocent party who relied
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