Duress: Coercion under Omani Law

Duress

Sometimes we are put in situations where we feel under pressure to sign contracts or to get into agreements we don’t agree with. This is usually because we feel that we have no real choice to say no and feel as if we were forced to make this decision out of necessity. This idea of being forced to perform an act or enter into an agreement falls under the legal principle of duress.

What is Duress (الاكراه– Ikrah)?

Duress is where a person/entity enters into an agreement or commits a crime as a result of a threat/threats. This results in the agreement/contract being void or the punishment for the criminal act to be set aside. 

Omani law recognized duress firstly in its case law as early as 1990 in a Commercial Court Appeal Judgment No.521/1989 where it said:

“Duress vitiating legal acts of disposal is that sense of dread the other contracting party unrightfully fills the soul with, which has its basis when the circumstances make the other party conceive that there is a grave threat posed against him or others in soul, body, honor or money”

This means that the courts in 1990 recognized duress as a principle where threat is made to a person’s soul, body, honor or money.

The judge further explains in the same judgment that the mere need for cash, – whether the defendant had not paid its dues or any other reason- cannot be deemed as duress. This means that when claiming duress as a defense or a way out, you will need to prove that it will cause real harm and will go beyond just the non-payment of dues. 

Criminal Law and Duress

You can find the principle of duress in the Penal Code promulgated by RD 7/2018. Article 51 states that:

“With the exception of murder crimes, he shall not be punished who commits a crime compelled by the necessity to protect himself, his property, or his honor, or protect another person, his honor, or his property from a severe and imminent danger, and which occurs beyond his own will. 

Whoever commits a crime because of physical or moral duress shall also not be punished.

It is required in the preceding two cases for the perpetrator of the crime to be unable to prevent the danger using other means, and for the crime to be insofar as necessary to ward off the danger and to be proportionate to it.”

This means that anyone who commits a crime -other than murder- shall not be punished if he was pressured into it for the above reasons. This difficulty here is proving the duress occurred and that the person who committed the crimes had no other choice and could not mitigate his/her actions for a better result.

For murder charges acted under necessity or duress, Article 301 of the Penal Code says that the punishment shall be no less than 1 year and not more that 3 years for the killer. 

It is clear that Omani Law identifies duress as a factor when issuing a judgment and sentencing and also punishes the person who inflicts duress causing the act to be committed.

*The Articles in the Penal Code addressing Duress are: 51, 117, 254, 301, 335, 336, 337, 346

Economic Duress

The Civil Transactions Law 29/2013 (Civil Code) codified the principle of duress in 2013. Article 98 defined duress as:

“the wrongful coercing of a person into what does not have his consent, be it by threatening life or limb or the inflicting of grievous harm or by threatening shame or dishonor or the destruction of assets”

Article 99 further went on to say that the threat must be from someone who is capable of committing the threat, for example the employer, client etc and that they must be persuaded of the likelihood of the threat.

Article 100 of the law identified certain factors to take into account when assessing the extent of the duress. These are the factors relate to the person who is put under duress:

• Sex
• Age
• Social position
• State of health
• Anything that may affect the gravity and seriousness of the duress. 

This means that the duress will be assessed as a case by case basis, not all duress will be considered the same and not all will have the same gravity. An easy example to help picture this is when a parent threatens to take the child’s toys away if he/she does not do his homework. For a child, this is a real and possible threat that will affect him/her –in their opinion- seriously. However, if the roles were reversed and the child was the one threatening the parent, the gravity and level of duress would be minimal/non-existent. (The same can be applied to criminal cases as discussed above)

If you can prove that you entered into an agreement based on duress the agreement shall be null and void (invalid) unless the agreement is later affirmed by you or your heirs (Article 101 of CTL).

Conclusion

The law aims to protect those who act out of necessity and duress. Those who are threatened with force or morally or with the destruction of assets may be able to use duress as a defense after committing a crime or as a way to get out of an agreement they did not want to agree to. However, there are certain factors to be take into account as well as a way to prove that in fact the act/agreement was a result of arealthreat. If you feel that you committed an act or agreement as a result of duress, please contact a licensed legal advisor to see how you can proceed from there.

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