Abstract:
In 2006, the National Organization for Registration of Deeds and Properties, in order to encourage couples to set a dowry 'when able' (Indal-istita'ah) with the aim of reducing the statistics of prisoners due to dowry debts, issued a directive to official marriage offices. Consequently, limiting the dowry to the husband's ability has gained more attention among couples; however, regarding the effects of this clause, the current practice of courts is assessed as inconsistent and scattered, such as the validity of the ability clause during divorce. The ruling of Branch 8 of the Supreme Court, based on reasons including 'the validity of a condition within the limits of its purpose (the effect of intent in a transaction), the dependency of a condition on the contract in its permanence, and the requirement of the rule of justice and fairness,' considers the condition of paying the dowry limited to the husband's ability—which is stipulated within the marriage contract—to pertain to the duration of the joint life, and deems the dissolution of marriage as a cause for the termination of the condition. In this case, the wife can demand the entire dowry mentioned in the marriage contract, regardless of the husband's financial ability or inability at the time of divorce. The present article aims to prove the validity of the aforementioned condition by rejecting the cited arguments.
Machine summary:
The ruling of Branch 8 of the Supreme Court, based on reasons including "the validity of a condition within the limits of its purpose (the effect of invalidity for the sake of transaction), the dependence of the condition on the contract in terms of continuity, and the requirements of the rule of justice and fairness," considered the condition of paying the dowry limited to the husband's ability—which is stipulated within the marriage contract—to be applicable throughout the duration of the shared life, and deemed the dissolution of the marriage as the cause for the disappearance of said condition.
1. Frustration 52 / Quarterly Opinion: Studies of Judicial Opinions, No. 33, Winter 2020 What makes the subject of discussion different and negates the possibility of applying this rule to the 'ability' condition is that it is of the nature of "an unpredictable event"; whereas in the case of stipulating the 'ability' clause in claiming dowry at the time of the marriage contract, the assumption of divorce between the spouses was not negated, and although the intention of the parties is to continue their joint life; given that the 'when able' condition is entered into the marriage document by the spouses themselves and by mutual agreement, and the purpose of setting conditions within the contract included in the marriage contract is generally aimed at facilitating the matter of divorce, this case cannot be excluded, and the lack of attention to the possibility of divorce cannot be considered the basis for validating the 'when able' condition as a pillar of the rule.
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