Ikrah: coercion in contracts

Duress in the sale

Duress (ikrah) is forcing a person to contract. Two cases must be distinguished.

Compulsion in the name of right: a judge compels a debtor to sell enough to repay. The sale is valid, binding and without withdrawal: the Prophet told the Jews of Khaybar: "whoever of you has wealth, let him sell it" (al-Bukhari 6545); al-Muhallab explains that since the payment of the right was already binding, their sale counted as their own choice.

A sale obtained by oppression: it does not bind the coerced seller, by the reported consensus (Muhammad ibn Sahnun: "our companions and the people of Iraq agree"; al-Abhari: "it is a consensus"); Ibn al-Ayni ranks the coerced sale void by agreement. Once the duress ends, the seller recovers what he can: the Malikis order the goods to travel back hand to hand until they reach the counterpart of the first buyer, the oppressor bearing the price or the value, whichever is greater.

Duress on the pledge

The Shafi'is hold that a pledge taken under duress, from either side, produces no effect: when the duress ends, the situation returns to what it was, and the asset is restored before any new contract. The Hanafis require consent and the owner's permission for the taking of the pledge; the muftis of the school tolerate the silence of the debtor present in the session as a sign of permission.

Practical note on ikrah

Consent is the soul of the contract: what is taken by force is not owned, and fiqh gives the victim a way back, asset by asset, up to the oppressor.