RESCISSION (RESCINDIBILITY). — Rescission is a means of preventing or removing the effects of an act which is in itself valid, but in which the proper proportion between the parties has not been observed.
A valid juridical transaction may contain within its very constitution a cause of disintegration. In this it differs entirely from one that is invalid, that is, null (v. NULLITÀ) from its inception. In the Italian Civil Code, contracts involving reciprocal performances are subject to rescission under arts. 1447–52, as is the partition of hereditary property under arts. 763–68. Accordingly, rescission, as it appears today in Italian law, differs from nullity and the consequent declaration, as well as from voidability, although it may be regarded as a subspecies thereof.
1. Rescission of contracts properly so called
Italian legislation recognizes two kinds, namely, rescission of a contract concluded when one of the two parties is in a state of danger, and rescission for lesion. The first is regulated by art. 1447, the second by art. 1448. The conditions that must be present for the contract to be rescinded are not identical in the two cases; a) rescission of a contract concluded in a state of danger presupposes an unjust agreement between the contracting parties, attributable in one case to bad faith (and therefore to knowledge of the other party’s state of danger), and in the other to the necessity of dealing with the danger. The obligation arising from it is regarded by law as an obligation undertaken on inequitable terms; and this also applies where it has arisen in order to save a third party, e.g., one’s father. The opposing party is generally required to have the intention, at least implicit, of taking advantage of the other’s state of necessity or danger. The law does not determine the disproportion capable of creating inequitable conditions; consequently, practice, custom, and jurisprudence will determine in concrete cases when it exists, naturally taking into account the obviousness of the fact. This rescission may be sought only by the injured party and within one year of the conclusion of the contract (subject to the provision of art. 1449, para. 1); when the action becomes prescribed, the corresponding defense is likewise barred. Although a rescindable contract can never be validated (art. 1451), it is nevertheless permitted that “the contracting party against whom rescission is sought may avoid it by offering a modification of the contract sufficient to restore it to equity” (art. 1450), which is ultimately the very purpose of rescission of contracts. Nevertheless, “rescission of the contract does not prejudice rights acquired by third parties” before registration of the action (art. 1452). b) Rescission of contracts on account of lesion occurs when (art. 1448) there is disproportion between the performance of one party and that of the other, and the disproportion resulted from one party’s state of need, which the other exploited in order to gain an advantage. In this case, unlike the preceding one, the law itself therefore determines the degree that the disproportion must reach, establishing that the lesion must still exist when the action for rescission is brought (ibid., para. 3). As a logical consequence of the facts, all aleatory contracts are excluded from the benefit of rescission, provided that they are valid, since it is entirely natural that there should be a disproportion, often enormous, between what is given and what had been promised. The rules governing the time allowed for bringing the action or raising the defense, the possibility of modifying the contract, the inadmissibility of validating the injurious act, and the effects with regard to rights acquired by third parties, are identical to those governing rescission of contracts concluded in a state of danger. It should also be noted that in both cases “when pronouncing rescission, the judge may, according to the circumstances, award equitable compensation to the other party for the work performed” (art. 1447); this is consistent with natural law.2. In matters concerning the partition of hereditary property
The preceding rules and those relating to art. 763 ff. are applied analogously. Accordingly, rescission may be obtained if the total value of the property to which the person is entitled is more than one-fourth less than that of the other co-heirs (art. 763); the rule applies, where the same disproportion exists, even when the partition was personally indicated by the testator (ibid.); nevertheless, “the co-heir against whom the action for rescission has been brought may terminate its course and prevent a new partition by paying, in money or in kind, the supplement to the hereditary share to the plaintiff or to the other co-heirs who have joined him” (art. 767); if the action is not brought within the prescribed period, that is, within two years (art. 763), the action for rescission is barred; the same occurs in the case of a settlement by which litigation arising in relation to the partition, or another act replacing it, has been brought to an end (art. 764). It is also established that “the action for rescission is admissible against every other act whose effect is to terminate the community of hereditary property among the co-heirs” (art. 764), even though these acts do not constitute partitions properly so called. In order that equity may be fully observed in modifying the partition, “in order to determine whether there has been lesion, the property is appraised according to its condition and value at the time of the partition” (art. 766).In the CIC, except for restitutio in integrum (cann. 1687–89), the ordinary means for every dissolution of a contract or juridical act of any kind is rescission. The action for rescission is granted to one who validly performed the act under the pressure of grave fear unjustly inflicted or fraudulently induced, after he has proved one or the other of these conditions (can. 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 action for rescission is admissible not only against the person who induced the fear or caused the fraud, even when this was done solely for the benefit of third parties (can. 1685 n. 1), but also against any possessor, whether in good or bad faith, who holds the object thus extorted (n. 2). The defense, available exclusively against the author of the fear or fraud (and therefore not against possessors or holders) who may demand performance of the contract or act, is by its nature perpetual (can. 1686). In practical terms, with regard to the CIC, it is sufficient to hold that every act of any kind which was initially valid may, at a given moment and for any reason contemplated by law, be regarded, in its effects or even in its existence, as never having occurred and therefore as dissolved, and is consequently rescindable. This rescission, however, is sometimes impossible either by provision of the CIC itself or by natural law or divine law. Unfortunately, some state legislations do not always take this adequately into account; the classic and painful example is divorce, granted against a valid marriage even if it has not been consummated.
The foregoing rules must be observed in ecclesiastical tribunals whenever actions for rescission are brought before them. Canon 1529 does, however, recall that in other cases everything established by the civil laws of the respective states concerning contracts and their rescission likewise applies to canon law, even in ecclesiastical matters, unless it is contrary to divine law or to some mandatory provision of the CIC.
IMPERIAL RESCRIPTS: V. EDITTO, II. E. imperiale.