A Comparative Study of a Restitutionary Remedy for an Undue Influence between the English Law and the Islamic Legal Principles

Abstract

In practice, an undue influence is an exceptional phenomenon in a transaction; however, the remedy for an undue influence is a very pertinent issue in every transaction. In the modern world, the forms of undue influence are very complex, thus, the types of remedy for this influence also vary from one transaction to another transaction under the Common Law Legal System. In this type of situation, a restitutionary remedy could be more appropriate rather than damage or a compensation for the claimant in a transaction, but in many cases the court usually refuses to grant a restitution resulting from an undue influence due to an ambiguity of the laws. As a result, the claimant is sometimes not provided with an adequate legal remedy for a possible unjust enrichment of the defendant as appropriate for the circumstance. On the other hand, a restitutionary right for an undue influence is also recognized in the Islamic law. According to the Islamic Legal Principles, an influencer is bound to restore the subject matter of the contract made under an undue influence. The focus of the research will be a restitutionary remedy for an undue influence exercised by the defendant at the expense of the plaintiff.