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If two parties write a contract with two clauses A and B, such that if the conditions of the first clause A, are not fulfilled then the contract defaults to the second clause B, and both parties have the intention at the time of signing that the conditions in clause A will not be fulfilled and / or write clause A so that it's impossible or nearly impossible to fulfill it's conditions, is clause A a valid part of the contract, or is clause B effectively the whole contract?

The assumption is that it is clear to everyone, including witnesses to the signing, that clause A is meant to be symbolic only, such that if either side were to try and fulfill the conditions in clause A the other side would fight against it's enforcement in Beit Din and try to prove it either invalid or unenforceable.

Edit

I just realized that this is an example of the logical construct known as empty truth or vacuous truth.

The heter iska agreement is one example of such a construct in halacha, and I don't understand why this is acceptable as it seems to contradict the idea of Torat Emet as I understand it in it's p'shat meaning ( which may be incomplete I admit ).

I could for example say:

If I am a chicken, then this pig is a cow.

Both are logically equivalent, yet no one would accept this statement as valid even though it is logically true.

Specifically, people assume that the logical truthfulness of the overall statement implies that "this pig is a cow" is truthful, which is clearly ( and logically ) not the case. The known truthfulness of "If P Then Q" implies nothing about the truthfulness of Q.

So when I say:

If ( some impossible condition ) Then ( the money I pay you is profit and not interest )

It seems that the above is what is happening, i.e. that people assume that the overall logical truthfulness of the statement necessarily implies that the second part of the structure is true, which is not the case.

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  • Is your question meant to be about the heter iska?
    – הנער הזה
    Commented Nov 13, 2014 at 14:55
  • It's related to it and motivated by it, but not specific to it. It's a general question about Jewish contract law.
    – Robert S. Barnes
    Commented Nov 13, 2014 at 15:17
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    Just curious, since a heter iska as usually used is essentially a contract with a clause/condition so impractical that I could see why you'd call it 'symbloic'. But if you were motivated by the heter iska, than you know that we use such a contract anyway
    – הנער הזה
    Commented Nov 13, 2014 at 15:34
  • @Matt I understand that people use it, but it quite frankly seems invalid, and I'd like to understand the justification for this type of contract in general.
    – Robert S. Barnes
    Commented Nov 13, 2014 at 17:13
  • So... you're asking "is clause A a valid part of the contract, or is clause B effectively the whole contract?" and you already know that evidence from the rules of ribis and iska prove the former. Why not just post an answer to your own question, then? Or why don't you, @Matt?
    – msh210 ♦
    Commented Nov 13, 2014 at 20:06

1 Answer 1

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Where term A is written with no intent of fulfilling it, the contract is "frustrated" and therefore the whole contract becomes void on the premise that a contract is only capable of being fulfilled when both parties are willing and agreeable to the terms. Where neither have the intention of fulfilling it and the fact is known in advance of entering the agreement, the contract is just an exercise in frustration rendering the contract clause invalid from the outset which makes for an unenforecable contract. See Doctrine of Frustration Now Clause B would be considered an exemption clause to A. see Exemption Clauses

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  • This looks like an answer based on common law (UK or US law ) rather than on halacha (Jewish law)
    – Edward B
    Commented Jul 12 at 13:51

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