Remedies Flashcards
(11 cards)
Q: In English law, how do we distinguish a void contract from a voidable contract?
A:
A void contract is treated as if it never existed (no legal effect, title does not pass).
A voidable contract is initially valid but can be rescinded by the innocent party. If not rescinded, it remains in force.
Q: What are the main consequences of a contract being void under English law?
A:
Title to goods does not pass, so property can be reclaimed.
Parties owe each other no contractual obligations.
Restitution may be possible in tort or unjust enrichment, because the contract never existed.
Q: In French law, what is the difference between nullité absolue and nullité relative?
A:
Nullité absolue protects a general (public) interest, so anyone with a legitimate interest can invoke it.
Nullité relative protects a private interest (e.g., a party’s consent), so only the injured party can invoke it.
Both result in the contract being void ab initio once nullity is declared, with restitutions required.
Q: Under French law, once a contract is declared null (whether absolute or relative), what is the typical effect on the parties?
A:
The contract is viewed as if it never existed (void ab initio).
Each party must return whatever was received (price, property, etc.).
This can adversely impact third parties who acquired rights from that contract (subject to certain protective rules, like “possession is title” for movables).
Q: How does Jersey law traditionally distinguish between void and voidable contracts according to Deacon v Bower?
A:
A contract is void ab initio if there is an inherent defect that negates an essential condition (e.g., lack of capacity, fundamental mistake).
If the invalidity arises from a “subsequent event,” the contract is voidable rather than void.
Q: In Jersey law, what sorts of defects might make a contract void ab initio?
A:
Lack of capacity (e.g., minor, or person under tutelle/curatelle).
Illegal or immoral subject matter (contra bonos mores).
Missing formalities (e.g., an immovable property contract not passed before the Royal Court).
Goods perished at formation, unknown to the seller.
Q: Under Jersey law, is a contract vitiated by dol (fraud) or duress always deemed void ab initio?
A:
Older cases (e.g., Steelux, Bisson v Bisson) suggested yes.
However, Hore v Valmorbida (2022) questions that approach, indicating dol/duress might instead render the contract voidable, in line with Le Geyt’s original classification.
Q: How does the void/voidable distinction in Jersey potentially affect third parties?
A:
If the contract is declared void ab initio, any transfer of property under it is treated as never having occurred, so third parties risk losing acquired rights.
If the contract is voidable, third parties can sometimes be protected if they obtain title before the contract is rescinded.
Q: Why is Selby v Romeril significant in the debate between void/voidable and nullité absolue/nullité relative?
A:
It showed the Royal Court adopting the French distinction (absolute vs. relative nullity).
However, more recent cases reverted to using English terms (void vs. voidable), reflecting Jersey’s mixed legal heritage but also creating inconsistency.
Q: What is the practical difference between nullité relative in French law and voidable in English law?
A:
Nullité relative: Once granted by a court, the contract is void from the start (ab initio), requiring restitution. It can also, in principle, unravel property transfers.
Voidable (English): The contract is valid unless/until the innocent party elects to avoid it. Third parties can acquire rights if the contract hasn’t yet been rescinded.
Q: Summarize the current stance of Jersey courts on nullity.
A:
Jersey courts predominantly use “void/voidable” but differ from standard English law on what renders a contract void ab initio.
There remains some confusion (e.g., whether dol or duress triggers void or voidable), with Hore v Valmorbida suggesting these defects should lead to voidable contracts, not outright voidness.
