Voidable, in law, is a transaction or action that is valid but may be annulled by one of the parties to the transaction. Voidable is usually used in distinction to
void ''ab initio'' (or void from the outset) and
unenforceable
An unenforceable contract or transaction is one that is valid but one the court will not enforce. Unenforceable is usually used in contradiction to void (or ''void ab initio'') and voidable. If the parties perform the agreement, it will be valid, ...
.
Definition
The act of invalidating the contract by the party exercising its rights to annul the voidable contract is usually referred to either as ''voiding'' the
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
(in the United States and Canada) or ''avoiding'' the contract (in the United Kingdom, Australia and other
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
countries).
''
Black's Law Dictionary
''Black's Law Dictionary'' is the most frequently used legal dictionary in the United States. Henry Campbell Black (1860–1927) was the author of the first two editions of the dictionary.
History
The first edition was published in 1891 by West P ...
'' (relevant to US law) defines voidable as follows:
Right to rescind
Generally speaking, one party will have the right to elect whether to annul the transaction or to affirm it. The avoiding of a voidable transaction amounts to the rescinding it or exercising a power of rescission and as such, it is subject to the general law in that regard.
The right to rescind can be lost. In
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, there are generally said to be four "bars" to rescission, any one of which will cause the agreement to no longer be considered voidable:
# delay
# affirmation (or ratification)
# ''
restitutio in integrum
''Restitutio ad integrum'', or ''restitutio in integrum'', is a Latin term that means "restoration to original condition". It is one of the primary guiding principles behind the awarding of damages in common law negligence claims.
In European pate ...
'' being impossible
# third party rights
Although the law varies from country to country, most disputes relating to whether a transaction is void or voidable turn on the ability to transfer title to goods. In many jurisdictions, if a transaction is valid, but voidable, title to good still passes under the transaction, and the recipient may sell them with good title. If the transaction is void, no title passes, and the original seller may reclaim the goods.
[See for example under English law, ''Cundy v Lindsay'' (1878) 3 App Cas 459 (described more fully in ]void (law)
In law, void means of no legal effect. An action, document, or transaction which is void is of no legal effect whatsoever: an absolute nullity—the law treats it as if it had never existed or happened. The term void ''ab initio'', which means " ...
).
See also
*
Per minas
''Per minas'', in English Common Law, is to engage in behaviour "by means of menaces or threats".
The term comes from Latin.
''Per minas'' has been used as a defence of duress to certain crimes, as affecting the element of ''mens rea''. Will ...
*
Voidable marriage
A voidable marriage (also called an avoidable marriage) is a marriage that can be canceled at the option of one of the parties through annulment. The marriage is valid but is subject to cancellation if contested in court by one of the parties to ...
*
Voidable contract
A voidable contract, unlike a void contract, is a valid contract which may be either affirmed or rejected at the option of one of the parties. At most, one party to the contract is bound. The unbound party may repudiate (reject) the contract, at ...
*
Void (law)
In law, void means of no legal effect. An action, document, or transaction which is void is of no legal effect whatsoever: an absolute nullity—the law treats it as if it had never existed or happened. The term void ''ab initio'', which means " ...
Footnotes
References
C. Stephen Bigler, ''Void or Voidable? -- Curing Defects in Stock Issuances Under Delaware Law'', 63 Business Lawyer 1109 (2008) (peer reviewed).
Contract law
Legal terminology
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