**RESCISSION (RESINDIBILITY).** — Rescission is a remedy to prevent or remove the effects of an act that is valid in itself but in which the proper proportion between the parties has not been observed.
A valid juridical act may contain within its very constitution a cause for its dissolution. In this respect it is entirely different from an invalid act, i.e., one that is null (v. NULLITY) from the moment of its creation. In the Italian Civil Code, contracts with reciprocal obligations are rescindible according to articles 1447–52, and the division of credit assets is rescindible according to articles 763–68. Therefore, rescission, as it is presented today in Italian law, differs from nullity and its consequent declaration, as well as from annulment, although it may be considered a subspecies of the latter.
1. **Rescission of proper contracts.** — Italian legislation recognizes two types of rescission: rescission of a contract concluded in a state of peril by one of the parties and rescission for lesion (unfair advantage). The first is regulated in article 1447, the second in article 1448. The conditions that must be met for rescission to apply are not identical in both cases.
a) **Rescission of a contract concluded in a state of peril** presupposes an unjust agreement between the contracting parties, due in one case to bad faith (and thus to the knowledge of the perilous state of the counterparty) and in the other to the necessity of facing the peril. The obligation arising therefrom is considered by the law as an obligation assumed under onerous conditions; it applies even if the peril was faced to save a third party, e.g., a father. Generally, the opposing party’s will—at least implicit—to take advantage of the other party’s state of necessity or peril is required. The law does not specify the degree of disproportion that constitutes onerous conditions; thus, practice, custom, and jurisprudence will determine in concreto when such conditions arise, naturally with evidentiary clarity. This rescission may be sought only by the aggrieved party and within one year from the conclusion of the contract (except as provided in article 1449, paragraph 1); the expiration of the action also precludes the related exception. Although a rescindible contract can never be validated (article 1451), it is permitted for the party against whom rescission is sought to avoid it by offering a modification of the contract sufficient to restore equity (article 1450), which is ultimately the very purpose of rescission. Nevertheless, rescission of the contract does not prejudice the rights acquired by third parties before the filing of the claim (article 1452).
b) **Rescission of contracts for lesion (unfair advantage)** occurs when (article 1448) there is a disproportion between the performance of one party and that of the other, and this disproportion stems from the state of need of one party, which the other exploited to gain an advantage. In this case, unlike the previous one, the law itself specifies the degree of disproportion required, establishing that the lesion must persist at the time the rescission claim is filed (ibid., paragraph 3). By logical consequence, all aleatory contracts—provided they are valid—are excluded from the benefit of rescission, since it is only natural that there be a disproportion, often enormous, between what is given and what was promised. The rules governing the time limit for bringing the action or exception, the possibility of modifying the contract, the admissibility of validating the injurious act, and the effects regarding rights acquired by third parties are identical to those governing rescission of contracts concluded in a state of peril. It should also be noted that in both cases “the judge, in decreeing rescission, may, according to the circumstances, assign an equitable compensation to the other party for the work performed” (article 1447), which is consonant with natural law.
2. **In matters of division of hereditary assets.** — The preceding rules and those referred to in article 763 et seq. are applied analogously. Thus, rescission is obtainable if the sum of the assets to which the party is entitled is less by more than one-fourth than that of the other co-heirs (article 763); the rule applies, in the event of the same disproportion, even if the division was personally indicated by the testator (ibid.). However, “the co-heir against whom the rescission action is brought may halt the proceedings and prevent a new division by supplying the supplement of the hereditary portion, in money or in kind, to the plaintiff or to the other co-heirs who have joined in the action” (article 767). If the action is not brought within the time limit, i.e., within two years (article 763), the rescission action is barred; this also occurs in the case of a settlement that puts an end to disputes arising from the division or another act that replaces it (article 764). It is also established that “the rescission action is admitted against any other act that has the effect of terminating, among the co-heirs, the community of hereditary assets” (article 764), even if such acts do not constitute true divisions. To ensure that equity is fully observed in the modification of the division, “to determine whether there is a lesion, the assets are appraised according to their condition and value at the time of the division” (article 766).
In the *Codex Iuris Canonici* (CIC), apart from restitutio in integrum (canons 1687–89), the ordinary remedy for the resolution of any contract or juridical act of any nature is rescission. The rescission action is granted to one who validly performed the act under the pressure of unjustly inflicted grave fear or deceit, after proving one or the other of these states (canon 1648 §1). Similarly to the Civil Code, the CIC admits the same action within two years in favor of one who was injured by an error exceeding half the value of the object (§2). The rescission action is admitted not only against the one who induced the fear or caused the deceit, even if only for the benefit of third parties (canon 1685 n. 1), but also against any possessor, whether in good or bad faith, who holds the object thus extorted (canon 1686 §2). The exception granted exclusively against the author of the fear or deceit (and not therefore against possessors or detainers) who may claim performance of the contract or act is by its nature perpetual (canon 1686). In practice, with regard to the CIC, it suffices to hold that every act of any nature that, though valid, may at a given moment for any reason contemplated by the law be considered in its effects or even in its existence as not having occurred and thus dissolved is rescindible. However, this rescission is sometimes not possible either by provision of the CIC itself or by natural law or divine law. Unfortunately, not all state legislations duly take this into account; a sadly classic example is divorce, granted even for a valid marriage that has not been consummated.
The foregoing rules must be observed in ecclesiastical tribunals; however, canon 1529 reminds us that in other cases, whatever is established by the civil laws of the respective states regarding contracts and their rescission also applies to canon law in ecclesiastical matters, unless it is contrary to divine law or to some mandatory norm of the CIC.
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**IMPERIAL RESCRIPTS:** V. EDITO, II. Imperial edict.