Nullity

NULLITY. - In various ways the law may prescribe a requirement for a juridical act: a) in such a way that the performance of the act is unlawful if the requirement is lacking; b) in such a way that in that case some or all of the juridical effects proper to that act do not come about; c) in such a way that the lack of the requirement produces both consequences. The act that has, or does not have, the prescribed requirements will be called, respectively, in the first case lawful or unlawful, in the second case valid or invalid, in the third case lawful and valid or unlawful and invalid.

But invalidity, which therefore occurs when one of the requirements referred to in letters b and c is lacking, can take on different aspects, depending on the importance of the missing requirement and on the reason for which the legislator prescribes it. Hence, more generically, one speaks of a defect, rather than of invalidity, of the juridical act.

Setting aside the terminological uncertainties of the laws and of doctrine (especially the less recent), various kinds of defective acts can be distinguished, noting that as a rule it is positive law that establishes what the consequences of the lack of a requirement are. In the first place, an act is called null which does not produce the juridical effects proper to the one that was intended to be performed, but either produces the effects proper to another kind of juridical act (conversion of the act), or produces none at all (a material act, which is not a juridical act). This happens especially when an act lacks a requirement so important that the legislator considers it must be required even if the persons taking part in the act wish to disregard it. Typical examples of n. are found in juridical acts performed without will, or without observing the form prescribed by law, and moreover, in private civil law, in unlawful juridical acts. In particular, for the n. of marriage, which may derive from the existence of a diriment impediment or of a defect of consent or of a defect of form, v. MATRIMONIO (IV, 1).

With regard to unlawful acts it is to be observed that, whereas for the law of the State, at least within the sphere of private law, the principle holds that all unlawful juridical acts, save certain exceptions, are null (cf. Cod. civ., art. 1418), in canon law the opposite principle holds, whereby a prohibited juridical act is not for that very reason null, unless the law accompanies the prohibition with the sanction of n. (cf. CIC, cann. 11 and 1680). The difference, however, is more apparent than real, because, when it is a question of acts with a patrimonial content (which are those for which the stated principle of civil law especially holds), canon law accepts the norms established by civil law (v. CANONIZZAZIONE DELLE LEGGI).

It may happen, however, that a requirement, prescribed in view of certain interests, is not so indispensable for these that it cannot be replaced by other elements; or indeed it may be that the interests themselves are equally satisfied despite the lack of a requirement. This explains why the law often establishes requirements whose lack does not produce, or does not always produce, the n. of the act. A first case occurs when, although the act is null, the n. can be healed, if a fact suitable for replacing the missing requirement survives, or a fact that demonstrates the uselessness of that requirement: one may think, respectively, in canon law, of the convalidation or sanatio in radice of Marriage (cann. 1133-1141, with the exception of can. 1135 § 1), and of the spontaneous appearance in court ad causam agendam after an invalid citation (cf. cann. 1587 § 1, 1711 § 2), or of the intervention of the electors in the election despite the n. of the convocation (can. 162 § 4). In this case one can speak of relative n., healable by means of a subsequent fact (positive, not merely negative) that has the effect of convalidating the act (with retroactive effect or not, according to what the law establishes).

Another case may instead be that in which, the subjects in whose interest the requirement is prescribed being limited, or the requirement not being entirely lacking but being merely irregular, the law holds that if those persons do not wish to prevent the act from attaining its effects, there is no interest in denying these. The act, therefore, is valid, and remains so if the interested parties tolerate the lack or the irregularity of the requirement, that is, acquiesce in it, but not if they assert that lack and demand that the act produce no effect; there is no need to add that, when the law follows this path, it always establishes a term within which the defect of the act may be asserted, so that the uncertainty concerning its effects can never be prolonged indefinitely. The act is in that case voidable, the defect is called voidability, and the effects of the act are suppressed by a subject other than the interested party (generally, by the judge), by means of annulment (with generally, but not necessarily, retroactive effect). Since, in such cases, voidability is imposed by law in the interest of the person for whose protection the missing or irregular requirement is prescribed, that person can no longer seek the annulment of the act when, although the term for bringing the relevant action has not yet expired, he has ratified the act after its defect has ceased. Examples of voidability are generally found in cases in which the author or authors of the act were legally incapable, and in cases in which they voluntarily performed the act, but the will was formed irregularly through the interference of a disturbing cause (defect of the will: error, violence, or fraud), whereas it is probable that if such a cause had not intervened the will either would not have existed or would have been different. Within the concept of voidability fall many of the cases in which the CIC speaks of rescission or of a rescindable act (cf. cann. 103 § 3, 104, 506 § 4, 1684-87), of irritatio at the instance of the interested party (cf. can. 162 § 2), of the possibility of restitutio in integrum (cann. 1687-89), etc.

In civil laws one speaks of rescindability and of rescission of an act in the case in which it is admitted that one of the parties may seek that the act be set at naught, because the just proportion among the various subjects has not been observed, as, for example, if in a contract there is the so-called enormous lesion, that is, a notable disproportion between the performance of one party and that of the other (cf. Cod. civ. artt. 763 and 1447-52; CIC can. 1684 § 2). Rescindability can be considered a subspecies of voidability, although doctrine is reluctant to admit this and civil laws regulate the one and the other in a notably different way.

Finally, it can happen that, although a juridical act lacks no requirement and none is irregular, it may nevertheless be, for pre-existing reasons or, more frequently, for supervening reasons, little in conformity with ethical norms or otherwise inopportune, and the legislator may deem it expedient to give to the author of the act or to others the power to remove or alter its effects (if the right belongs to the author of the act, one speaks of ius poenitendi): this phenomenon can be indicated collectively by the name of revocation, although that term is more commonly used only for the case where it comes from the author of the act himself. Included in it are, besides the well-known examples of the bilateral revocation of contracts and the unilateral revocation of wills and donations (on which cf. also CIC cann. 583 n. 2, and 1536 § 4), the irritatio (cann. 1312 § 1 and 1320), the suspensio (cann. 1312 § 2), the dispensatio (cann. 1313 and 1320), the commutatio (cann. 1314 and 1320) and the relaxatio (cann. 1317 § 2) of a vow or an oath. The difference between revocation and annulment lies in this: in the latter, once the lack of the requirement has been established, whoever has the power to annul must pronounce the annulment; in the former, on the other hand, it is left to the discretion of the one who has the power to judge whether or not it is appropriate to nullify the effects of the act.

Pio Ciprotti