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As noted here: At least in Israel, by agreeing to marry under religious law a person is irrevocably subject to that law's rulings, to the extent that a religious court can sentence one to a term in prison.

I.e., in Israel, people can opt to enter a marriage contract that subjects them to a separate legal system that can sentence them to prison, and the state will enforce such terms.

In the U.S., and in other civil law and common law countries: Will the state ever enforce a contractual term (marital or otherwise) involving imprisonment for something that is not a crime under the state's laws? Or, when faced with prison under the terms of the contract, can one always default on the contract and thereby face only civil penalties?

  • This sounds like a regular prenuptual agreement in the United States. You would have to actually give details to determine if it falls under the fraud statutes. – sabbahillel Feb 6 '17 at 0:44
  • Pretty simple: Someone signs a contract agreeing to prison in event X, and when X happens decides he doesn't want to go to prison. For this to qualify as criminal fraud in the U.S. would turn on whether the contract was entered "with purpose of evasion," beyond a reasonable doubt. Criminal fraud also requires the state to prosecute. It's hard to imagine either of these occurring in a marital dispute, unless the violator was notorious. – feetwet Feb 6 '17 at 0:58
  • If it is a dispute because he refuses to give the divorce, and the proof is that the marriage is invalid, then the marriage has been dissolved and there is no longer a dispute. What would be the problem? – sabbahillel Feb 6 '17 at 1:36
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    The religious courts in Israel require state recognized specialized Judges and they can make a request/ruling (in this case to grant a divorce) against any person. If the person refuses they are in contempt of court and can be detained (indefinitely in the USA)until the ruling is obeyed. In this case the Court limited the maximum term to 5 years, or until the person grants the Divorce. This enables the "imprisoning" husband the freedom of choice, 5 years prison or release his wife. In the USA & many other countries any Judge could do the same. – LOIS 16192 Feb 6 '17 at 4:01
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    There's also a principle in common law that penalties in contracts are not enforceable: en.wikipedia.org/wiki/Penalties_in_English_law. Sometimes there is a fine line between damages (allowed) and a penalty (not allowed), but in this case the line seems pretty clear, because imprisoning the breaching party doesn't really help compensate the injured party in any tangible way. – Nate Eldredge Feb 6 '17 at 5:12
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My vote is that the (prison, contract) term would not be enforceable. In Williams v. Walker-Thomas 350 F.2d 445, multiple items of furniture were purchased on credit, and the payments were "distributed" over all items so that no items were paid for until all items were paid for – thus the store could repossess all of the items, if one payment was missed. The court held that this was unconscionable, and could not be enforced ("we hold that where the element of unconscionability is present at the time a contract is made, the contract should not be enforced"). A similar case is Waters v. Min Ltd. 412 Mass. 64. However, inferior bargaining power is a distinguishing fact in these cases.

Parenthetically, I note that the referenced imprisonment was for disobeying a lawful court order, so there is a path that leads to jail if you don't obey a court order to perform on a contract, if so ordered.

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Generally speaking, the law in almost every common law and civil law jurisdiction does not allow incarceration to be a punishment for a mere breach of contract (when that breach of the contract was not intended at the time the contract was entered into by the parties by one of the parties but not the other).

Historically, there was a remedy called "body execution" for non-payment of a debt that would result in the person who breached the contract being sent to debtor's prison, but that remedy was abolished almost everywhere.

There are still non-payments of debts that can lead to your incarceration. One common example is a willful failure to pay child support which you have an ability to pay. This can result in incarceration for contempt of court, and is also a separate statutory non-support crime in many states. Failure to pay a municipal fine is sometimes treated similarly. These arise from the status of these debts as court orders.

Also, many states have criminal penalties for knowingly issuing a check that will bounce, on the theory that it amounts to fraud, rather than a breach of contract, and sometimes that crime is defined rather broadly. Breaches of contracts that someone intended not to honor at the moment that they were entered into are also considered criminal frauds or thefts. For example, a Ponzi scheme falls in this category.

Other relatively minor actions that can result in criminal liability are failing to observe the terms of a trust or escrow, certain copyright and trademark violations, and absconding with property that is collateral for a loan. These crimes arise because the actions are considered violations of property rights (which often have criminal implications) as opposed to violations of contract (which generally cannot have criminal implications).

Still, as a general rule, parties to a contract, without state sanction through a court order or a prosecution for a violation of a crime established by statute, cannot provide for imprisonment as a consequence of a breach of the contract.

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It's unenforceable for the same reason that they can't kill you as a term of the contract - you cannot contract to do something against the law. Holding someone against their will is a crime. Only government has the right to imprison and only in accordance with relevant law.

  • Except, of course, when you are imprisoned as a result of a legal process. – user6726 Feb 6 '17 at 5:15

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