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

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Islamic Studies, 30:3 (1991) obligations of the coercer and whether his threat is made for outrageous purposes. Hochmen v. Zigler, 50 A. 2d. 97,100 (N.J. Ch. 1946) or to whether the threat is against public policy. shaeta Water Co. v. Croke, 276 p. 2d. 88.91. (GI. dist. a. App. 19YI). (threats of criminal su&red the risk of heparable injury. Tri-State Roofins Company of Union Town v. Simon, 187 pa. super 17.142. A. 2d. 333 (1958). Needkss to say. as a pwerical matter even rightful (as opposed to wrongful) threats an ovenmne a will. The RatoPnncnf Second rrfusbd to incorporate the "omcome will" language saying that it is too vague and hpradbble. Ramemmt Second, '"tracts," see. 175, Comment (b). Ibid., Comment (c). fidelity & Causality Co. of New York v. United States, 490 F. 2d. %0,966 (Ct. C1.1974). (mere strcss of ~~ circumstances is not duress). Despite similar factual situations, cwrts will reach different conclusions depending on how the court evaluates the equities and policies at stake. For example, see, Meier v. Nightingale. 46 A. 2d. 785 (N.J. 1946). defendant refused to return plainWs car unless he pays an amount greater than what plaintiff believed they agreed upon. Plaintiff paid and used daiming duress of goods. The wurt denied relief to plaintiff asserting that plaintiff had other, especially statutory, alternatives. But see, Leeper v. Beltrami, 53 Cal. 2d. 195,347 p. 2d. 12.1 cal. Rptr. 12 (1959), defendant threatened to foredose on plaintiff's house unless she made a certain payment. Plaintiff paid and then claimed duress. Court held fo~ plaintiff relying on equity and policy consider;ltions. It is not reasonable, according to the wurt to e w people to lose their homes as they await the result of litigation. Aka see, Tri-State Roofing Co. v. Simon, 187 Pa. Super 17,142 A. 2d. 333 (1%5), (wrongful threat to breach contract is not duress because there is no irreparable injury). Austin Instrumental v. Loral Corp. 29 N.Y. 2d. 124 (1971), (wrongful threat to breach a government contract is duress). Hochman v. Zigler's Incorp., 50 A. 2d. 97. 100 (N.J. Ch. 1946), (when landlord's threat of eviction is made for outrageous purposes and the tenant had no adequate relief, duress is found); Laaeach v. Beatria Foods Co. F. Supp. 152 (1978), (summaryummaryjudgment for defendant appropriate when plaintiff claimed that-he was intimidated by defendant's vast economic power into releasing his interest in a Nigerian company). 168 A. 426,432 (N.J. 1933). RarutmMf, Coutracts, 492 Comment (c); Calamari and Perillo, Lmw of Contmcts, 4436, 1 Perkins and Boyce, Criminal Lmw, p. 1064; Clark and Marshall, A Tmatise on the Law of I Crimes (7th ed.), p. 366. Calmari and Pedo, Lmw of Contnacts, pp. 343-344; 17 C.J.S. "Conhacts," p. %3; 25 Am Jur. 2d. "Dunns," pp. 358-359. Kronmover v. Vuck, 258 III, 586.101 N.E. 935 (1913); (only recognising a close relaltive): Saxon v. Saxon (1976) 4, W.W.R. 300, 305 (B.C.S.C.) (only rrcognising a close relative), 25 Am. Jur. 2d. "Dwess," sec. 22 (noting that courts only rewgnise close relative); 17 C.J.S "contractr." sec. 179 (noting that there is disagreement between the courts); Restatement ' First of Contracts only recognised threats to near relatives (sec. 499, but Rc~fatemrnt Second of Contracts provides that the threat does not even have to be directed at a relative as long / as the third party duress induces the victim to manifest his assent. Sec. 176 Comment (b). j See, Corbin, On Comm (one volume edition, 1952). pp. 10-14. In modem legal tenninol- : ogy, contracts that might lack legal effect are either voidable, void or unenforceable. In the case of voidable contracts, a party has the power to either validate or avoid the contract. I In other words, the legal effect of the contract is a-ested until released by the wronged party. A void contract has no legal effect from the moment of its inaption. It is negatory i ! and ineffective and cannot be cured by a subsequent validation. An unenforceable contract I ' is a contract enjoying complete legal validity, however, it is unenforceable because of external legal factors like a statute of Limitations or the statute of frauds. i See. Ra- Second, article 174 and 175. See; Rcstclrmuru, C h ~ utides , 4% and 495; and Calamari and Perrillo, h w of Contmcn, pp. 349-350. In Roman law, contracts I , obtained by duress were not void per se. Nonetheless, the victim of duress (metll~) could i
Islamic Studies, 30:3 (1991) 343 Oppose the @I-tation of the contract and render it ineffective. Additionally, the vi&,, dd bring a delis (ac&n q d metus UW) agaiost the oppressor and be entitled to a penalt)Lsuch action had to be brought witbin one year from the date of the illegal See- Ihom=, Tex&ok of Itom Low (Amsterdam: North-Holland Publishing Co., 1976). pP 228 and 373; Md lber, Rorrurn Private Low (Durban: Butterworth, 1%5), P. 49. Also see Kes~el, ~ ~ ~ ~ R c I ACrhinak, D J u Beinhart s and Warmelo trans. (Johannaberg: Juts and Co. Ltd. 1973). VOI. 1, p. 389 and vol. 2. p. 907. See, B e al-'Uliun, 'Uyyrib, p. 306. See, Me#&, Artides 26-30. Artide 26 provides: "A private injury is tdmted in order to ward off a public injury." Also see, al-Qarafi, d-Fvnip, vd. IV (Beirut: 'dam al-Kutub, n.d.), pp. &9; al-Gh-, al-Musmsjd, vol. I (Cairo: al-Matba'a al-Amiriyah, p. 322) pp. S297; Ibn 'AM alSalam, Qawa'id al-Ahhim, vol. I (Beirut: Dar al-Ji, 1980). pp. 54-62 and 93-94. me work cited are on the general principles of Idamic law. me example given by these jurists comes from criminal law but the example only demonstrates the general principle. This factual scenario is taken from Wertheimer, Coenion, p. 275. Wertheimer, however. uses this scenario in the amtext of addressing diierent issues. Wertheimer seems to argue that A should pay the fees and sue to recover later. 1 am not sure that even under the Common law system this conclusion is correct. '2ht Ra-w Suond is vague becaw of the imprecision inherent in the reasonableness standard. Idamic law is vap bmw the value system on which it relies is unclear. lbn Nujaym, d-Ashbcih, vol. 3, p. 203. The only disagreement from within the Hanafi ranks came from war who argued that the contract is not corrupt, rather, it is conditioned on the victim's s"bsequent approval. If the victim never approves it then the contract is unenforceable. I am not sure, however, that there is a real difference in contents between Far's arguments and his other Hanafi col- Som of the Whit verses state, "Let there be no ampubion in religion; T ~th stands out dcar from em." (11:256) "Anyone who, after accepting faith in God, uttaymbelief, except rmda complbioo. . . On them is wrath from God." (16:106) A h sec (24:33) and (4:19). 'Lbe Propha is reported to have Mid, "My nation has been absolved [from liability] regardiug [* invohg] mistakes, forgcthrlness and what they have been compelled to do." See, Ibn H-, al-Mu!uaUii, wl. 8, p. 334. Ibn +mu, aCM- vol. 9. p. 21. See, an extensive discussion of this issue in al-Sarakhsi, d-She al-Siyar, pp. 55-59, also see, pp. %97. ALSO see, al-Ramli, Nihdyah, vol. 3, p. 397; al-Jamal, Htishiyah, pp. 17-18; Ibn M e , al-MihY, vol. 4, p. 7; and Ibn QuW, d-Mu*, vol. 5. p. 110. AI-K~&-, M-r Sayyid KW, wl. 5, pp. 9-10; al-Wqi. Hbhiyat d-Dus~iqi, vd. 2, p. 369, and al-Dardii, al-Saghir, vd. 3, p. 18. See. al-Sanhh-. Maydir, pp. 207-214 for a fairly detailed study of this issue. me Imqi Civil Code, article 115, provides that duress makes a contract unenforceable; the Egyptian Civil Code, article 127, provides that duress makes a contract voidable. D'Aquim v. United States, 192 F. 2d 338.358 (9th Cir.. 1951); Nall v. Commonwealth. 208 Ky, 700,271 S.W. 1059 (1925); State v. St. Claire, 262 S.W. 2d. 25 (Mo. 1953); United States v. Gordon, 526 f. 2d. 406,407 (9th Cir. 1975); Shannon v. United States, 76F. 2d. 490,493 (10th Cir., 1935); DPP v. Lynch, [I9751 A.C. 653,655; R.V. Hudson [I9711 2 All E.R. 244,247; United State v. Balley, 444 U.S. 390,410-11 (1980); United States v. Boomer, 571 F. 2d. 543-545 (10th Ci.) Cert denied 436 U.S. 911 (1978); Cde v. United States 347 F. 2d. 492 @.C. Ci.) Cert. Denied, 381 U.S. 929 (1965); United States v. DiFr01120.345 F. 2d. 383 (7th Cir.) Cert, Denied, 382 U.S. 829 (1965); Phillips v. United States, 334 F. 2d. 589 (9th Cir., 1%4) Cert Denied. 379 U.S. 1002 (1965); 22 C.J.S., C* Low, Sec. 100.180. Perkins. C* Low, 916-18. United States v. Palmer 458 F. 2d 663 (9th Cir., 1972); People v. Ricker, 45 111. 2d. 562, 262 N.E. 2d 456 (1970); Kawakita v. United States, 343 U.S. 717 (1952); Even the Model
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