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What does it mean that a contract (or a sentence) is enforceable?

Does it always mean that force can be used to fulfil such contract?

Does it always mean that failing to fulfil such contract would result in a jail sentence for whomever has failed to fulfil it?

Are there kinds or degrees of enforceability?

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You can obviously write anything into a contract that you like. However, the laws of your country always apply, and the laws can tell you that some things are not valid, even if they are in a contract. Such things cannot be enforced. Things in a contract that are valid according to the laws can be enforced.

An extrem example would be a contract saying "user6726 pays gnasher $20,000, and gnasher kills user6726's spouse". Since killing your spouse is a very serious crime, even if we both signed it, and even if you paid the $20,000, you couldn't enforce me doing my side of the contract.

What does it mean if we say a contract can be enforced? It means if we both sign a contract, and you do your side of the bargain, and I don't do mine, then you can take me to court. If the court agrees, the court can order me to do what the contract says, and/or to pay you damages. If I refuse, the court has ways to "convince" me to do my side of the bargain. For example, they could send bailiffs to my home, who take my property and sell it in an auction to pay for what I should have paid. They can not in most countries send me to jail.

Sometimes one side cannot fulfil their side of the contract. If there is a contract that you build a brand new home for me, and I pay you a million dollar, but I not only don't have the money but am hugely in debt, then I can't pay you. Some people will say that you can't enforce your contract which is legally imprecise. You can take me to court etc., but you can't take money from my empty pockets.

I might be in trouble though if I signed the contract knowing that I can't pay you; that could be criminal fraud and I might go to jail if a judge and jury believe that I committed fraud.

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  • I don't think that example of incarceration is to enforce a contract. If you paid the party after conviction you are still in jail for fraud. – George White Aug 16 at 22:46
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Does it always mean that failing to fulfil such contract would result in a jail sentence for whomever has failed to fulfil it?

No, not always. In fact it seems pretty uncommon. A sanction or remedy for persistent breach of contract (i.e., in violation of a court order compelling the performance of contract) is likelier to be in the form of fines until the party performs his contract obligation(s).

However, if the party in breach of the contract persists despite a court order, the court may enter a finding of civil contempt and sanction that party with incarceration. See Brault v. Kosmowsky, Court of Special Appeals of Maryland (March 3, 2020):

[A] court may order that a party be incarcerated for contempt if he fails to comply with a provision in a marital settlement agreement that requires him to refinance a loan and remove his wife's name from the obligation, because that requirement is not a "debt" in the sense of an agreement to pay money.

(citing cases). Thus, incarceration is a possibility at least where performance does not consist of an agreement to make a payment.

Are there kinds or degrees of enforceability?

Yes, but they typically depend on the intent, context, and terms of the contract.

Some situations or contracts warrant strict enforceability, others might contain clauses such as time is of essence (thereby emphasizing the importance of fulfilling the obligations with a strict deadline), and in the rest of contracts a substantial or material compliance is enough. The last category means that remedies would not be awarded for inconsequential or immaterial departures from the terms of the contract.

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  • The court talks about incarceration until compliance with a subpoena not compliance with a civil contract. – George White Aug 16 at 22:44
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    @GeorgeWhite You're right. I replaced the case with one that more closely deals with a contract/agreement controversy. – Iñaki Viggers Aug 16 at 23:16
  • much better example and educational to me – George White Aug 17 at 4:03
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It does actually mean that force can be used, in a specific way. The courts may rule that Smith has to turn over the painting, and if he refuses, the order can be enforced, which means, in one scenario, that the sheriff will show up at Smith's house to take possession of the item. They can use physical force to effectuate the court's order. I don't think there are "degrees" of enforceability, but there are complex conditions under which something can be enforced. Or, a clause may be unenforceable in one jurisdiction, but enforceable in another.

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"Does it always mean that failing to fulfil [SIC] such contract would result in a jail sentence for whomever has failed to fulfil [SIC] it?"

NO

In the modern western world non-fulfillment of a contract does not result jail. It would be a civil matter. Enforcement might be of a financial judgement that could end up with seizure of property. No debtors prisons for quite a while in the west - but do not fail to pay your bills in Dubai!

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  • Thanks, @GeorgeWhite. Is the term "fulfil" incorrect in this context? (I'm not a native English speaker.) – lfba Aug 17 at 2:14
  • It just needs 2 ll's – George White Aug 17 at 4:00
  • Oh! I was speaking British. Thanks, though. – lfba Aug 17 at 13:09

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