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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?

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  • 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. 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? Feb 6 '17 at 1:36
  • 2
    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
  • 2
    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. Feb 6 '17 at 5:12
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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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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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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.

1
  • 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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In civil law jurisdictions, such contracts are invariably never enforceable, because this contradicts the public policy principle (lit. "public order and good morals"), one of the basic principles of the civil law of continental jurisdictions, cf. e.g., Article 6 of the French Civil Code, Art. 138 of the German Civil Code, and Art. 90 of the Civil Code of Japan.

Personal freedom could not be deprived without due process and according to law; moreover, it is a crime to do so in almost any jurisdiction. If such a contract would be allowed, then it would be a major breach of public order (and the law). Therefore, it is imperative that such contracts could not be allowed.

If a contract breaches the law and the public order, then it is deemed void. It is not only unenforceable, but also considered to be technically non-existent. If one party has already been imprisoned, they are entitled to damages due to tort/delict, since the contract was void and the captor had no valid reason to imprison. (Of course, the imprisoning party will likely also be prosecuted.)

In some civil law jurisdictions, a legal act void in part is considered void in its entirety. (By jurisprudence constante in some jurisdictions, but also codified in some jurisdictions, cf. Art. 139 of the German Civil Code). However, in other jurisdictions, a legal act that is void in part is only partially void (cf. Art. 156 of the Civil Code of the People's Republic of China). But regardless, it is highly likely that a contract with such outrageous terms would be considered to be negotiated in ill faith, thus rendering the entire contract void.

So, in conclusion, the said articles in the contract is not enforceable, fully null and void, and very likely the entire contract is also null and void.

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