Document Type : Review Article
Authors
PhD Student in Jurisprudence and Foundations of Islamic Law, Faculty of Theology and Islamic Studies, Ferdowsi University of Mashhad, Mashhad, Iran.
Abstract
One of the fundamental pillars of the validity of transactions in Imamiyyah jurisprudence is the existence of free will and full consent of the contracting parties at the time of concluding the contract. Accordingly, coercion (Ikrāh) is recognized as a factor that negates free will and causes the contract to be void, an issue subject to consensus among jurists. However, regarding the status of a coerced contract after the state of coercion has disappeared, there are three main views among early and later jurists:
Validity with Subsequent Permission (Ijāzah Lāḥiq): Proponents hold that the coerced contract becomes effective upon the expression of subsequent consent.
Absolute Invalidity: This view maintains that the coerced contract is void even with subsequent consent and cannot be rectified.
Elaboration between Forced (Mulji') and Non-Forced (Ghayr Mulji') Coercion: This theory differentiates between levels of coercion. In forced coercion (Mulji') (which completely negates intention and will), the contract is void; but in non-forced coercion (Ghayr Mulji') (which only impairs consent), the contract is deemed valid with subsequent consent.
The author, citing rational and narrative evidence, has chosen the elaboration view as the preferred theory. In addition to conforming to precise jurisprudential standards, this view has stronger customary support and has been approved by prominent jurists such as Sāḥib Jawāhir and Sheikh Ja'far Kāshif al-Ghiṭā'. A comparative analysis of the opinions shows that elaboration in the ruling on coerced contracts is a balanced solution consistent with social and legal realities.
Keywords
- coercion
- free will
- validity of contract
- subsequent consent
- forced coercion
- non-forced coercion
- Imamiyya jurisprudence
Main Subjects
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