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

The Doctrine of Duress (Ikrah) in Sharia, Sudan and English Law THE DOCTRINE OF DURESS (IKRAH) IN SHARIA, SUDAN AND ENGLISH LAW Judge 'Abd El-Wahab Ahmed El-Hassan Duress, 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 Sharid 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 (muljg and non- constraining (ghayrmuljl); both types nullify the consent, but only the former vitiates choice.' 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 2 Consent is defined as the real willingness and consent with which the choice is made. 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 http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Arab Law Quarterly Brill

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

Arab Law Quarterly , Volume 1 (2): 231 – Jan 1, 1985

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Publisher
Brill
Copyright
© 1985 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0268-0556
eISSN
1573-0255
DOI
10.1163/157302585X00103
Publisher site
See Article on Publisher Site

Abstract

THE DOCTRINE OF DURESS (IKRAH) IN SHARIA, SUDAN AND ENGLISH LAW Judge 'Abd El-Wahab Ahmed El-Hassan Duress, 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 Sharid 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 (muljg and non- constraining (ghayrmuljl); both types nullify the consent, but only the former vitiates choice.' 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 2 Consent is defined as the real willingness and consent with which the choice is made. 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

Journal

Arab Law QuarterlyBrill

Published: Jan 1, 1985

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