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

320 Islamic Studies, 30:3 (1991)
on such a contract. In other words, even if the object of the illegal act of
duress moves into the regular course of business (even if it is handled by
hands, in Islamic terminology) it is still retrievable by the victim. If we may
illustrate, assume A illegally compels B to give his horse to C and % sells
the horse to D. Both C and D know nothing of A's illegal acts. Nonetheless
B can retrieve the horse from C or D wherever it may be. D can sue C or
A for the price of the horse, and D can sue A for the same price. In other
words, the victim of duress is entitled to retrieve his rights, and the other
parties are left to settle things amongst themselves. Ultimate, liability lies
with the offending oppressor. The victim, however, cannot commit any act
that evidences his acquiescence in the transaction. For example, if he willingly
delivers the product or accepts a price after the duress is removed, that is
a sign of acquiescence and approval. In effect, the Hanafis argued that
contracts or sales induced by duress are voidable at the election of the victim.
The Shafi'is, Hanbalis and Zahiris disagreed. They considered such transactions
as void from the moment of their creation. Ibn Hazm, the Zahiri,
relied on the Qur'hic injunctions prohibiting compulsion in religi~n,'~ then
he argued, by analogy, that duress creates inherently illegal transactions
that may not be sanctioned at any stage." The Shafi'is took another point
of departure. According to them, consent (al-tarrudi) is a prerequisite for
a contract to form in the first place. Since duress negates such consent, in
reality, a contract was never formed, and, therefore, no legal effect can be
given to such duress. Thus, the contract is void from its inception. The
Hanafis, on the other hand, argued that consent is not a prerequisite for a
contract to form, consent, rather, is necessary for a contract to be effective.
This led the Hanafi school to conclude that a contract induced by duress is
simply voidable and not void.''
The Maliki school chose a less stringent alternative. Maliki jurists
decided that contracts or sales induced by duress are non-binding (ghayr
kern): Thus, they cannot be enforced against the victim, but the victim
cannot enforce his rights against innocent third parties who take in the course
of business without knowledge of the illegality. The victim's remedy is to
pursue the oppressor and obtain just compen~ation.~
If we rank the Islamic schools of thought in terms of how far they
were willing to go to negate the effect of duress, the Shafi'is, Hanbalis, and
Zahiris were willing to go to the furthest; to them the contract is void. They
are followed by the Hanafi school; to them the contract is voidable. The
MHliki school seems to be the most permissive in this regards; to them the
contract is not binding.87