Voiding (annulling) laws

166. Notion. 1. An invalidating law is said to be that which renders invalid acts which, considered in themselves by the law of nature alone, would be valid.

a. Invalidations are chiefly concerned with contracts, marriage, vows, oaths, religious profession, elections, and benefices.

b. The reason for this law is that frauds, dangers, and other inconveniences may be warded off from society, and in this way the common good may be promoted.

c. From these things it is clear that an invalidating law of itself is not penal; but because the invalidation of an act falls to the burden of the agent, it can be imposed as a punishment for a delict.

2. A twofold invalidation must be distinguished:

a. Moral invalidation, by which an act is deprived of the natural value which it has by the law of nature in the forum of conscience, and civil invalidation, by which an act is deprived only of the positive value which it has from civil law in the external forum. An act civilly invalid produces no right which the political power acknowledges and protects; but in the forum of conscience it produces its right just as if the invalidation were not present.

b. Moral invalidation is either lata, if the effect is produced by the law itself, or ferenda, if the effect is produced through the sentence of a judge. An act of this kind has and retains its natural value unless it is invalidated through a sentence.

167. Division. Invalidating laws are divided: a. Into laws which render an act invalid by the fact itself, and into laws which make an act rescindable through the sentence of a judge.

b. Into laws which prohibit and at the same time invalidate an act, such as diriment impediments of marriage, and into laws which only invalidate an act and do not prohibit it, such as the formalities of wills.

The former oblige in conscience to omitting the act; but the latter of themselves do not oblige to omitting the act, but only to undergoing the effects of the invalidation either already before or at least after the sentence of the judge. Therefore it is not lawful, e.g., to enter marriage with a diriment impediment, but of itself it is lawful to make a will without legal form.

c. Into merely invalidating laws, which are established only for the common good, which postulates that certain acts be invalid, as the law invalidating marriages which are celebrated without the form having been observed; and into penal invalidating laws, which are established as a punishment of the agent, as the impediment of crime, which diriments marriage. The former suppose no fault in the agent.

168. Principles. 1. All concede that both ecclesiastical and civil legislators have the power of issuing invalidating laws, because this is useful, and sometimes even necessary, for the common good. Therefore they can establish invalidating laws, not indeed at will, but as the common good requires.

Nor should it be said that this doctrine supposes something that is false, namely that positive law prevails over natural law: for the law of nature itself requires that social power be furnished with this faculty for the common good. Wherefore natural laws of this kind, e.g. concerning the value of donations, are not absolute but conditioned, namely unless they are invalidated by positive law.

2. Ecclesiastical invalidating laws render the act itself invalid naturally and in conscience; but civil invalidating laws before the sentence of a judge of themselves render the act invalid only civilly and in the external forum, unless something else is certainly established either from the object or from the words of the law.

For where the end intended by the legislator can be obtained even if he does not touch the forum of conscience, he is judged to employ only external means for the end. And this indeed must be conceded the more readily because modern legislators rather often do not acknowledge obligation of conscience properly so called. But after the sentence of a judge the act must be held invalid even naturally and in conscience, because the sentence is founded upon the presumption of common danger.

3. A purely invalidating law obtains its effect even if it is invincibly unknown or the act is placed from grave fear: for it is required by the common good that the law should not cease on account of invincible ignorance or grave fear of the agent; therefore a marriage contracted in good faith with an invalidating impediment is null. A penal invalidating law, which joins the invalidation of the act as a punishment for the violated law, does not invalidate the act where ignorance or grave fear excuses from fault: for when fault, which is the cause of punishment, is lacking, the effect or punishment also is lacking.

If fault is committed, but the punishment of invalidation is unknown, some with Suarez¹ judge that the invalidation remains, because ignorance which does not excuse from fault also does not excuse from the punishment added to the fault, even if it is unknown; but others with Sanchez² teach that the invalidation does not remain: for delinquents indeed incur ordinary punishments proportioned to the delict, even if they are ignorant of them, but they do not incur extraordinary or exorbitant punishments if they are ignorant of them; but the invalidation of an act is an extraordinary and exorbitant punishment. Therefore they judge that crimes which otherwise diriment marriage do not induce a diriment impediment if the punishment of invalidation is unknown. This opinion indeed is probable.

4. An invalidating law indeed ceases in a case of common impossibility or of most grave common inconvenience, but it is not certainly established that it ceases also in a case of private impossibility or of most grave private inconvenience.³

¹ Cf. De legibus l. 5. c. 22. n. 4.

² Cf. Opus morale in praecepta decal. l. 1. c. 16. n. 15.

³ Cf. Ballerini-Palmieri I. n. 318 ss.

In order to make sure of attaining the end he has in view, the legislator sometimes annuls and makes void some act which otherwise would have its natural effect. Such a law is called a voiding or annulling law, and there are many examples of it both in civil and ecclesiastical legislation. Thus a deed is void unless sealed, signed, and delivered; a will is void unless made with the requisite formalities; marriage between near relations is null and void. Sometimes the law makes an act voidable only, and not immediately void, at the instance of someone who must move in the matter; otherwise the act will remain valid. Thus a contract entered into under constraint is voidable by English law; a gift made of his property by a religious under simple vows is voidable by his superior, unless it has taken effect and a third party has thereby acquired rights. Sometimes the law does not annul the act or make it voidable, but it refuses to grant an action to vindicate a claim or it bars the remedy. Thus English law will not aid the winner to recover a wager, nor does an action lie to recover payment of a debt barred by lapse of time.

A voiding law sometimes directly affects the act, and makes it of no effect, as does an impediment of marriage; sometimes it immediately affects the capacity of the person, as ecclesiastical law deprives religious who are solemnly professed of the capacity to make a valid will; sometimes it annuls an act destitute of certain formalities, as a clandestine contract of marriage.

If a voiding law also prohibits the acts which it annuls, it binds subjects not to perform such actions; charity and justice require also that a lawyer employed to make a will should draw it validly according to the law; otherwise one who performs an act made void by law, but which is not morally wrong or injurious to others, does not commit a sin.

Neither ignorance, nor grave fear, nor serious private inconvenience avail to make valid an act which has been made void by the law. For none of these causes affects the objective validity of the act which the law strikes at for the common good. If, however, a voiding law causes great public inconvenience, then it ceases to be for the common good; it ceases to be useful, and thereby ceases to be a law with binding force.

The effect of voiding laws in English jurisprudence seems to be not to invalidate an act or a contract which is otherwise valid, but to empower the party concerned to annul it if he choose to take advantage of the law. Unless the party concerned move in the matter, the act struck at by a voiding law will remain valid. This seems to be the view which lawyers take of the effect of such laws; it is in keeping, too, with a very prevalent theological opinion concerning the nature of voiding laws in modern jurisprudence.¹

¹ Encyclopedia of the Laws of England, s.v. “Null and Void.”

I. Notion. An invalidating law is one which establishes that some act is invalid or to be invalidated by a judge. Moreover, a law can invalidate an act either by rendering persons incapable of an act of this sort, or by establishing conditions or forms without which the act will be invalid.

An invalidating law differs from a law which, as it is said, merely does not assist an act, that is, which neither confirms an act, for example a contract, nor deprives it of force, but leaves it such as it is according to the natural law.

II. Division. An invalidating law is distinguished:

1. Into a law which invalidates an act ipso facto,¹ and one which decrees that the act is to be invalidated by a judge.

2. Into directive or legal, penal, and directive-penal. Directive is one which invalidates an act in favor of the common good or of certain persons; of this sort is, for example, a law which invalidates clandestine marriages, or a profession emitted before the sixteenth year of age. Penal is one which invalidates an act in vindication of fault, suppose the conferral of a benefice carried out simoniacally. Directive-penal is one which invalidates an act both in favor of the common good or of private persons, and in vindication of fault.

¹ In the case, however, the law can be passed in such a way that the act is not invalidated except after a declaratory sentence, that is, one which declares that the crime has been committed.

III. The power of passing invalidating laws is clear from the fact that simple prohibition does not suffice to prevent some acts; likewise from the fact that invalidation of acts is often necessary to avert deceptions and other inconveniences.

IV. Obligation of an invalidating law. 1. An invalidating law does not necessarily at the same time prohibit the act. Nevertheless the act can also be prohibited, either explicitly or implicitly; it is implicitly prohibited when the act is of such a nature that, once its invalidation has been posited, it is shameful to place it. Of this sort is, for example, an invalid matrimonial contract.

2. Even in the case in which the act is not prohibited, there is an obligation of undergoing those things which intrinsically arise from the invalidation; hence from an invalidated act there does not arise a right to the effects and fruits attached to a valid act.

V. Causes excusing from invalidation. "No ignorance of invalidating or incapacitating laws excuses from them, unless something else is expressly said" (can. 16, § 1). Likewise grave damage to be avoided does not prevent invalidation. The reason is that the common good requires that invalidating laws made in favor of the common good retain their force, even if the invalidation is unknown, or the act cannot be avoided without grave damage (St. Alphonsus, VI, 1079). Except the case in which the damage would be of such a sort that there would be place for epikeia (n. 143).

If, however, the invalidating law is purely penal, ignorance which excuses from fault brings it about that invalidation does not have place. In the case the condition is lacking, namely fault, which a purely penal invalidating law supposes. Hence one who inculpably did not recite the canonical hours makes the fruits his own (cf. can. 1475).

181. • An irritating law is that which establishes that some act is invalid from the beginning, or is to be invalidated by the sentence of a judge. Hence some laws irritate by the fact itself, but others only after sentence. Some are irritating absolutely, others conditionally, namely if the required conditions are lacking. Moreover some immediately irritate the act itself, as the impediment of marriage on account of clandestinity; others mediately, by rendering the persons themselves incapable, as the impediment of consanguinity.

Principles. - I. Every legislator can establish irritating laws; the reason is that this is required for the common good; otherwise frauds and dangers of human society could not be sufficiently driven away.

II. Laws which establish that acts can be rescinded do not irritate them before the sentence of a judge, as is plain from the terms, and therefore before the same sentence they do not obtain force.

III. But the sentence of a judge irritating must be stood by in all those things which are intrinsically born from irritation, because obedience must be given to the authority commanding.

182. Questions. - Quaer. 1° Does an irritating law oblige in conscience to avoiding the act?

Resp. Affirmatively, if it is at the same time irritating and prohibiting, as are laws establishing impediments of marriage; otherwise, if it is only irritating, because then the end of the law is sufficiently obtained by the irritation of the act alone, as in many civil contracts.

Quaer. 2° Does invincible ignorance impede the effect of irritation?

Resp. Negatively of itself, because ignorance does not supply the defect of a thing essentially required, nor does it remove the grave inconveniences which would follow if the law did not irritate in every case. Thus a woman violated by an unknown man invalidly marries his brother, notwithstanding invincible ignorance of the impediment of affinity.

Make exception, however, if the law irritates solely for the penalty and odium of the offense; because then it intends to punish malice alone, and therefore, when the cause ceases, the effect also ought to cease.

Quaer. 3° Does an irritating law irritate notwithstanding very grave inconvenience?

Resp. Affirmatively, unless there is question of common damage; the reason is that an irritating law affects the act rather than the person, nor is there question of an obligation of conscience, but of the common good; otherwise men would more easily feign inconveniences for themselves, and the law would lose all its force. Hence a marriage contracted with a blood relative, even from fear of death, without dispensation, would not be valid.

St. Thomas, I-II, q. 95, a. 4.

277. Manifold division.

Each thing can be divided per se according to that which is contained in its notion. But there are many things in the notion of human law, according to each of which human law can properly and per se be divided.

1. For it belongs to the notion of human law that it be derived from the law of nature; and according to this positive right is divided into the law of nations and civil law, according to the two modes by which something is derived from natural law (n. 271). For to the law of nations pertain those things which are derived from natural law as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; this is of natural law because man is naturally a social animal. But those things which are derived from natural law by way of particular determination pertain to civil law, according as any city determines something accommodated to itself.

2. It belongs to the notion of human law that it be ordered to the common good of the city; and according to this human law can be divided according to the diversity of those who give special work to the common good, as priests, princes, and soldiers; and therefore certain special rights are adapted to those men.

3. It belongs to the notion of human law that it be instituted by one governing the community of the city; and according to this human laws are distinguished according to the diverse regimes of cities. One of these is kingdom, when, namely, a city is governed by one, and according to this the constitutions of princes are taken. Another regime is aristocracy, that is, the principate of the best or of the nobles, and according to this are taken the responses of the prudent and also senatus-consults. Another regime is oligarchy, that is, the principate of the rich and powerful, and according to this praetorian right is taken. Another regime is of the people, which is called democracy, and according to this plebiscites are taken. Another is tyrannical, which is altogether corrupt; whence from this no law is taken. There is also a certain regime mixed from these, which is best, and according to this is taken the law "which the elders together with the people have sanctioned" (or the deputies of the people together with the prince) (cf. q. 105, a. 1).

4. It belongs to the notion of human law that it be directive of human acts; and according to this, according to the diverse things about which laws are borne, laws are distinguished on account of the matters about which they are. Thus St. Thomas, q. 95, a. 4.

278. Division of present-day law.

Present-day human laws, according to jurists, are divided according to the diverse persons and things about which they act, and are reduced to a threefold genus:

a) Some constitute public right (the law of the state), which is also called political and administrative right: they chiefly regard the state of the republic, social functions and institutes, and relations between the republic, or its institutes, and citizens.

Thus the Constitution or fundamental law, laws which rule municipalities, provinces, the organization and administration of justice, worship, the army, elections of deputies, the public treasury, tributary and fiscal laws.

1. In Belgium they are called: la constitution; les lois provinciale, communale, de bienfaisance publique, des cimetieres, des cultes et fabriques d'eglise, d'organisation judiciaire et d'administration de la justice, de la force publique (armee, gendarmerie), des notariats, des consulats; les lois de comptabilite, des contributions, douanes et accises, les lois fiscales (d'enregistrement, de greffe, du timbre, sur la succession, la transmission, etc.), les lois sur le tresor public, la dette publique, les monnaies, la banque nationale, etc.; les lois sur les chemins de fer, postes, telegraphes, telephones, etc.; les lois sur les droits politiques, for example, les lois electorales, et de naturalisation; les lois sur l'enseignement et les langues, etc.

b) Some constitute private right, or civil right more strictly so called: they are chiefly concerned with those things which pertain to the utility of individuals, and with rights and relations of citizens to one another. Thus the civil code, the commercial or business code, and various laws concerning dominion of property, even literary and industrial.

2. In Belgium they are: le Code civil (elaborated in the years 1803-04, but modified several times, for example, in 1854, 1859, 1887, 1891, and still more recently; it contains the theory of ordinary right), le Code de commerce (promulgated in the year 1807, but in Belgium almost totally changed in the years 1851, 1867, 1872, 1873, 1874, 1877, 1879, 1883, 1891, 1913, 1919; it contains the theory of the special right of merchants and of acts of maritime and terrestrial commerce); to these are added les lois sur la propriete litteraire et industrielle, sur les mines, les vices redhibitoires, les brevets d'invention, marques de fabrique et de commerce, warrants, etc. To the civil code, which is theoretical, there is added the practical code concerning the mode of pursuing civil and commercial rights: le Code de procedure civile (in the year 1806).

c) Some constitute penal right, which chiefly regard crimes, delicts, transgressions, or contraventions. Thus the penal code, and various penal and disciplinary laws.

3. In Belgium they are: le Code penal (in the year 1810, but in Belgium changed in the year 1867; it determines delicts and penalties theoretically), to which are added le Code penal militaire, le Code disciplinaire et penal pour la marine marchande et la peche maritime, les lois sur la provocation, l'hypnotisme, les offenses et les attentats contre les souverains etrangers, la protection des enfants, le vagabondage, la mendicite, les falsifications, les armes de guerre non prohibees, etc. To the penal code, which is theoretical, there is added the practical code concerning the path to be followed for obtaining the punishment of someone: le Code d'instruction criminelle (1808).

To civil right rather than to penal right pertain the laws which are called social and sometimes are called new right, which, namely, are concerned with the utilities and rights of some class of citizens and with relations between diverse classes.

1. In Belgium they are: les lois sur les livrets de travail (1883), les salaires (1887), le travail des femmes et des enfants (1889), les reglements d'atelier (1896), les unions professionnelles (1898), la securite et la sante des ouvriers (1899), le contrat de travail (1900), le mesurage du travail (1901), les accidents du travail (1903), le repos du dimanche (1905), le conseil des prud'hommes (1910), la journee de 8 heures (1921), les associations sans but lucratif (1921), le contrat d'emploi (1922), etc.

To penal right rather than to civil or administrative right pertain the codes or laws which rule fields and rural estates, forests, hunting and fishing, or the sale of certain things.

2. Thus in Belgium: le Code forestier (1854), le Code rural (1886), les lois sur la chasse et la peche (1882, 1883, 1887, 1891, 1900), la vente des marchandises neuves et les objets mobiliers.

352. An invalidating law is that which renders some act invalid or null. To it is reduced, as a species to a genus, an inhabilitating law, which decrees that some person is unfit for this or that act; whence invalidation directly regards the act, and inhabilitating directly regards the person; nevertheless in practice and morally speaking both return to the same thing, because the act is always rendered invalid either immediately or mediately.

Invalidating law differs: a) from prohibiting law, because this renders the prohibited act illicit, not invalid; whence there are distinguished a merely prohibiting law (e.g., an impeding impediment of marriage), a merely invalidating law which only invalidates the act and does not prohibit it (as can happen if a superior invalidates the vow of a religious), and a law at once prohibiting and invalidating (e.g., a diriment impediment of marriage);

b) from penal law strictly so called, because this establishes a penalty on account of fault; whence there are distinguished a penal invalidating law, which invalidates in penalty for a delict (e.g., formerly one ordained without a certain title, and still today a beneficed person omitting the office receives fruits invalidly), and a directive invalidating law, which invalidates on account of the common good (e.g., clandestine marriage) or on account of the protection of certain persons (e.g., religious profession before age sixteen, a promise extorted by fear, alienation of goods of the Church without the consent of the chapter): then invalidation is a penalty improperly so called;

c) from a permitting law, which does not acknowledge the act or allows it to be neglected by others, or from the simple absence of law by which an act is not protected in the external forum (invalidation improperly so called).

Moreover, just as penal law, so invalidating law has effects by the fact itself or by the sentence of a judge: for sometimes by the law itself or by right the act is most fully invalidated, as happens for impediments of marriage, and for simoniacal conferral of a benefice (can. 729); sometimes it is invalidated by law in such a way that for the full effect a declaratory sentence of a judge is required, e.g., an election made if more than a third part of the electors were not legitimately convoked (can. 162, § 3), a renunciation made from grave fear unjustly inflicted, from fraud or substantial error, or simoniacally (can. 185); cf. also can. 1679, 2238: in which case the force of the sentence is drawn back to the moment at which the act was done and it is null from the beginning (can. 1679-1682); sometimes it is not invalidated by law, but by a decretory or annulling sentence of a judge, because the law establishes that the act can be invalidated by competent authority, or rescinded, as acts proceeding from grave fear or fraud (can. 103, § 2; 104; 153; 162, § 2; 1317, § 2; 1684, § 1; 1689): then it is invalid from the moment of the sentence.

The sentence of the judge, and consequently annulment, can be impeded by licit means; indeed the act remains valid even if the sentence is impeded by illicit means. But if this is done by unjust means, there can arise an obligation of repairing damage.

353. Principles. I. An invalidating law obligates judges to hold the act as invalid or to invalidate it; others, not to omit the act, but to hold it as invalid or not to insist upon an invalid act.

II. A penal invalidating law enacted against fault does not obligate nor have effect if fault is lacking: for it is founded on a presumption of a particular fact; whence invincible ignorance excuses from it, because the penalty was established on account of fault and supposes it. Thus if a beneficed person, from inculpable forgetfulness, omits, e.g., vespers of the office and compline, he makes the fruits his own.

III. An invalidating law which is also directive always obligates and has effect even if fault is lacking or if the law is unknown: for it is founded on a presumption of common danger, and the cause of annulment subsists even in a case of ignorance, namely, the common good. Hence canon 16, § 1: "No ignorance of invalidating or inhabilitating laws excuses from them, unless something else is expressly said."

Per accidens, however, the obligation ceases:

a) on account of common necessity: thus the impediment of clandestinity ceases if the pastor or Ordinary or delegated priest who would assist at the marriage cannot be approached, and it is foreseen that this condition of affairs will last for a month (can. 1098);

b) also on account of private necessity in a more urgent case, if the Church is known (or can be presumed) to dispense, as happens for almost all impediments of ecclesiastical right, both when danger of death is urgent and if, with all things prepared for the nuptials, the marriage cannot be deferred without probable danger of grave evil (can. 1043-1045; 1098).

354. Observations.

1. Concerning invalidating laws, let canon 11 be noted: "Those laws only are to be held invalidating or inhabilitating by which it is expressly or equivalently established either that the act is null or that the person is inhabilis" (that is, by equivalent words, e.g., by prescribing the necessary form of an act or substantial conditions).

2. Hence invalidation is not per se presumed to be annexed to a prohibiting law, but is to be proved per se and certainly. Whence canon 15: "Laws, even invalidating and inhabilitating laws, do not urge in doubt of right" (founded and reasonable).

3. On the contrary, in order that an invalidating law also be prohibiting, an express declaration is required, unless the act is base in itself or illicit from elsewhere.