The Doctrine of Duress (Ikrah) in Sharia, Sudan and English Law

Abstract

I)uress, generally speaking, is the exercise of an unlawful pressure on a person to create in him a fear which causes him to enter into a contract. In Shana according to all Sunni Schools duress will denude the contract of its binding force, because it nullifies the consent. There are two elements in duress, the first is under what circumstances does duress operate? The second is what is the effect of a contract made under duress? Only the Hanafi jurists divided duress into constraining (mulj) and nonconstraining (ghaytmulWi); both types nullify the consent, but only the former vitiates choice. 1 The Hanafis require freedom of choice, and freedom of consent as a basis to conclude a valid contract. Choice is defined as the intentional taking of one of two possible courses of action by preferring one to the other.2 Consent is defined as the real willingness and consent with which the choice is made.3 The objective element concerns the material act of duress itself, and the subjective element concerns the psychological effect of the act on the mind of the person under duress. Hanafi jurists illustrate this distinction by an amusing example, i.e., a man who divorces his beauiiful wife because she does not observe the Islamic rites is making a choice although he may not be happy about divorcing his wife.4 A person concluding a contract under compulsion is making a choice. He is choosing between suffering what is threatened and making a contract which he does not want. But he does not truly consent to make that contract since he cannot be happy or satisfied with the choice he has made. Or to put it more strongly, he has no alternative. The Hanafi view is that although duress nullifies consent, it does not negate choice. 5 So constraining duress leaves to the duressed no way for freedom of choice, and it therefore vitiates his choice, whereas in non-constraining duress the duressed can choose between suffering or doing what he was asked to do.6