Are you avoiding me? A reflection on voidness and voidability

IF 1 4区 社会学 Q2 LAW
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引用次数: 0

Abstract

ABSTRACT Voidness is an extreme doctrine. Whether a contract or other transaction is or is not void depends upon rules which, although frequently founded in powerful logic or statutory dictat, operate in a rigid way which frequently have little to do with a just or fair outcome between all the persons affected, however hard the law of restitution then seeks to bind up the wounds. By contrast, the equitable principles which regulate the avoidance of a voidable contract by way of rescission are precisely concerned to deliver a just and fair result, particularly to third parties who have acquired rights under the voidable transaction in the meantime. The critical distinction between the two is that the question whether, at strict common law, a contract is or is not void is a mechanical, logical, perhaps philosophical one which has little immediate connection with fairness or proportionality. Restitutionary principles only come into play to clear up the mess once voidness has been recognized or, if in dispute, declared. By contrast, the equitable principles regulating rescission govern whether a merely voidable contract should actually be unwound in the first place, as well as the terms upon which rescission may be ordered. They have fairness and (now) proportionality at their heart.
你在躲着我吗?对空性和可空性的反思
摘要无效性是一种极端的学说。合同或其他交易是否无效取决于规则,这些规则虽然经常建立在强有力的逻辑或法定指令之上,但运作方式僵化,往往与所有受影响的人之间的公正或公平结果无关,无论恢复原状法多么难以弥合创伤。相比之下,规范以解除方式撤销可撤销合同的衡平法原则正是为了提供公正和公平的结果,特别是对在此期间根据可撤销交易获得权利的第三方。两者之间的关键区别在于,在严格的普通法中,合同是否无效是一个机械的、合乎逻辑的、也许是哲学的问题,与公平或相称性几乎没有直接联系。重述原则只有在无效性得到承认或在有争议的情况下被宣布后,才能起到清理混乱的作用。相比之下,规范撤销的衡平法原则首先规定了仅仅可撤销的合同是否应该真正解除,以及可以下令撤销的条款。他们的核心是公平和(现在)相称性。
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来源期刊
CiteScore
0.80
自引率
0.00%
发文量
54
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