Duress and Its Impact on Contracts in the uae Law on Civil Transactions: Analytical Study in the Light of Islamic Jurisprudence

In: Arab Law Quarterly
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  • 1 Abu Dhabi University, Abu Dhabi, UAE

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This research addresses and analyses ‘duress’ and its impact on contracts, being one of the defects in consent, as regulated by the uae legislators in the Law on Civil Transactions. uae legislators have gleaned duress-related provisions from Islamic jurisprudence, as per its approach to regulation of the provisions of civil transactions. Therefore, this research needs to be referred to the different Schools of Islamic jurisprudence, these being the source of the uae Law on Civil Transactions. The research concluded that there is consensus among scholars of Islamic jurisprudence, as to the fact that duress affects a contract; however, these scholars hold differing views as to the extent of such impact. The research further concluded that the uae legislators have derived the legal regulation of duress from the Ḥanafī and Mālikī Schools of Islamic Sharīʿah—though there are some differences between these Schools—and the research arrives at additional conclusions and makes some recommendations.

  • 1

    It is Federal Law No. 5 of 1985, as published in the Official Gazette, on 29 December 1985, and as amended by Federal Law No. 1 of 1987. It is worth mentioning that most countries call it the ‘civil law’. The Law on Civil Transactions means the set of legal rules governing the financial relations between persons, excluding those covered by another branch of the private law, such as commercial transactions, which are regulated by a separate law, called the Law on Commercial Transactions.

  • 4

    Anwar Sultan, Sources of Commitment in the Jordanian Civil Law, A Comparative Study of Islamic Jurisprudence, (Amman: House of Culture for Publishing and Distribution, 2016), 82.

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  • 5

    Abed al-Moneim Badrawi, General Theory of Commitments, First Part, Sources of Commitment, Voluntary Sources (Cairo: Arab Renaissance Publishing House, 1968), 214. Duress is an illegitimate act that gives the victim the right to seek compensation from the person exercising it, on the basis of tort. Moreover, according to the Penal Code, duress is deemed as an offense, if it satisfies the elements of the Offense of Threat. See Mustafa al-Jammal, Sources of Commitment (Cairo: University Publishing House, 1999), 136 et seq.

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  • 8

    Appeal No. 391/2012. (Commercial), Legal Provisions and Principles Issued by the Court of Cassation of the Departments of Civil, Commercial and Administrative, First Part (Abu Dhabi: Judicial Department, 2013), 306.

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  • 10

    Ibn Abidin, Messages Ibn Abidin, Part V, 134; Al-Attar, supra note 6 at 140; Yousef Mohamed Ebedat, Sources of Commitment in Civil Law (Amman: Al-Massira House for Publishing and Distribution, 1st edn., 2009), 109. Article 179 of the Law on Civil Transactions states that, ‘Forcible duress nullifies consent and vitiates free choice. Non-forcible duress nullifies but does not vitiate free choice’.

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  • 12

    Ebedat, supra note 10 at 110.

  • 13

    Al-Attar, supra note 6 at 140.

  • 14

    Sultan, supra note 4 at 82.

  • 15

    Sarhan & Khater, supra note 9 at 124.

  • 16

    Sultan, supra note 4 at 86; Sarhan & Khater, ibid.

  • 17

    Yassin Mohammad al-Jubouri, ‘Duress in Case of Necessity (Negative Duress) in the Jordanian Civil Law’, Al-Mezan Journal of Islamic and Legal Studies i(2) (2014): 8.

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  • 18

    Cass. Soc. 5. Juillet, 1965, Bull. cib n°545, p. 460; J.Y. Chevallier, L’état de necessité (Bouzat: mélanges, 1980), 117 et seq.

  • 19

    Al-Jubouri, supra note 15 at 9.

  • 22

    Appeal No. 667/2013 (Commercial), Legal Provisions and Principles Issued by the Court of Cassation of the Departments of Civil, Commercial and Administrative, Fifth Part (Abu Dhabi: Judicial Department, 2013), 2154.

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  • 24

    Appeal No. 1266/2012 (Commercial), Legal Provisions and Principles Issued by the Court of Cassation of the Departments of Civil, Commercial and Administrative, First Part (Abu Dhabi: Judicial Department, 2012), 508.

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  • 25

    Al-Sanhouri, supra note 12 at 201 et seq.; Sarhan & Khater, supra note 9 at 130.

  • 28

    Al-Mahdi, supra note 24 at 108.

  • 29

    Al-Attar, supra note 6 at 146.

  • 31

    Al-Sanhouri, supra note 12 at 199.

  • 34

    Appeal No. 667/2013 (Commercial), Legal Provisions and Principles Issued by the Court of Cassation of the Departments of Civil, Commercial and Administrative, Fifth Part (Abu Dhabi: Judicial Department, 2013), 2154. Appeal No. 1266/2012 (Commercial), Legal Provisions and Principles Issued by the Court of Cassation of the Departments of Civil, Commercial and Administrative, First Part (Abu Dhabi: Judicial Department, 2012), 508.

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  • 38

    Al-Jubouri, supra note 18 at 6.

  • 39

    Ayman Abed al-Aal, Fawaz Saleh, Civil Law, Sources of Commitment (Damascus: University Press, 2005), 112 et seq. It is worth to mention that the disclosure of secrets constitutes a crime according to the penal law in uae (Article 378).

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  • 42

    Al-Jubouri, supra note 33 at 172.

  • 43

    Al-Attar, supra note 6 at 149.

  • 44

    Al-Sanhouri, supra note 12 at 203.

  • 45

    Tnago, supra note 33 at 55.

  • 46

    Sultan, supra note 4 at 84.

  • 47

    Al-Jubouri, supra note 33 at 185.

  • 48

    Sarhan & Khater, supra note 9 at 133.

  • 49

    Al-Attar, supra note 6 at 256.

  • 51

    Ahmed, supra note 21 at 29.

  • 52

    Al-Attar, supra note 6 at 226.

  • 56

    Al-Attar, supra note 6 at 226.

  • 57

    Al-Sanhouri, supra note 12 at 211 et seq.; Al-Zouhyle, supra note 11 at 454; The Explanatory Memorandum of the Law on Civil Transactions, supra note 7 at 197.

  • 58

    Al-Zouhyle, supra note 11 at 456.

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