Rethinking the Doctrine of Nullity

• Author: Ronald J. Scalise Jr.
• Position: Vice Dean for Academic Affairs and A.D. Freeman Professor of Civil Law, Tulane Law School
• Pages: 663-718

Rethinking the Doctrine of Nullity

Ronald J. Scalise Jr.∗

TABLE OF CONTENTS

Introduction .............................................................................. 664

I. A Brief History of Nullity ....................................................... 665

A. Roman Law ....................................................................... 665

B. The Spread in Europe ....................................................... 667

C. Louisiana Law ................................................................... 670

1. From 1808 to 1984 ..................................................... 670

2. The 1984 Revision and the Classic

Division of Nullities ................................................... 671

II. Thinking About Nullity ........................................................... 672

A. Ambit of the Law of Nullities ........................................... 673

B. Kinds of Nullities: Express v. Tacit ................................. 674

C. Classification of Nullities: Bilateral and Unilateral ......... 678

D. Scope of Nullity ................................................................ 683

E. Effect of Nullity on Third Persons ................................... 684

III. Critique of the Current Doctrine and Refinement of the

Classic Division ....................................................................... 685

A. What Nullity Is Not About ............................................... 686

1. Not Severity or Significance of Violation ................. 686

2. Not the Scope of the Interest Protected ...................... 687

B. What Nullity Is About: Temporary v.

Permanent Defects ............................................................ 689

1. Temporary Defects: Relative Nullities ...................... 689

2. Permanent Defects: Absolute Nullities ...................... 691

a. Public Order Nullities ........................................ 691

Copyright 2014, by RONALD J. SCALISE JR.

∗ Vice Dean for Academic Affairs and A.D. Freeman Professor of Civil

Law, Tulane Law School. An earlier version of this paper was presented at a

meeting of the Bartolus Society, a workshop at Tulane Law School, and as part of

a seminar on the civil law. The author gratefully acknowledges the comments and

suggestions received at all venues and the assistance of his former research

assistant, Lance Cardwell. Any remaining errors are attributable solely to the

author.

664 LOUISIANA LAW REVIEW [Vol. 74

b. Violation of Solemn Form Requirements ......... 693

c. The Curious Case of Inexistent Acts ................. 696

i. A Case Study in Contract Formation .......... 700

(a) Capacity ............................................... 701

(b) Consent................................................. 702

(c) Cause .................................................... 704

(d) Object ................................................... 704

ii. Sales, Marriages, and Other Contracts ........ 705

IV. Mixed Nullities ........................................................................ 709

A. Cases of Mixed Nullities .................................................. 710

B. Cases of Jurisprudential Confusion Not Resulting in

a Mixed Nullity ................................................................. 713

Conclusion ............................................................................... 717

INTRODUCTION

Nullity is the concept or the doctrine (or perhaps the most

common doctrine) that deprives legal acts of their effects.1 In

common law terms, it is the concept of voidness or voidability.

Eminent authority has called this subject “one of the [most] crucial

subjects of the law,”2 probably because of the extent of its

application. Unlike contract law or property law, the concept of

nullity is not specific to one series of transactions or one substantive

area of the Civil Code. Nullity applies equally and perhaps as

significantly in the areas of contracts, property, sales, marriages,

community property arrangements, successions, and many others. In

short, it applies and is relevant across all aspects of private law and

even public law. Despite its importance, the concept of nullity has

been noted to be one of the “most obscure in the field of the civil

law.”3 A thorough-going analysis of nullity has eluded many well-

respected scholars, not the least of which is Domat, who it is said

1. See, e.g., PHILIPPE MALAURIE ET AL., LES OBLIGATIONS 333–36 (4th ed.

2009) (discussing the distinctions between various causes of inefficacy of acts);

ALAIN BÉNABENT, DROIT CIVIL: LES OBLIGATIONS 143–45 (9th ed. 2003).

2. SAÚL LITVIN OFF & W. THOMAS TÊTE, LOUISIAN A LEGAL TRANSACTIONS:

THE CIVIL LAW OF JURID ICAL ACTS 162 (1969).

3. 1 MARCEL PLANIOL, TREATISE ON THE CIVIL LAW PT. 1, No. 328, at 219

(photo. reprint 2005) (La. State L. Inst. trans., 12th ed. 1959). See also BÉNABENT,

supra note 1, at 145 (“La théorie des nullités est complexe et, sur bien des p oints,

reste très incertaine.”).

2014] RETHINKING NULLITY 665

“completely failed in his attempt” to explain nullities.4 Pothier, it is

said, “did not succeed any better.”5

This contribution attempts to add some clarity to the law of

nullity in Louisiana. It does not attempt to prescriptively reform or

rewrite the law of nullity. Rather, its goals are modest in attempting

to descriptively analyze existing law in a coherent fashion and under

a new theory. Part I of this Article briefly examines the history of

the doctrine of nullity from Roman times to modern Louisiana law.

In Part II, the current law of nullity is examined in a critical and

more descriptive fashion in an attempt to spell out an aspect of the

law of nullity commonly ignored by the traditional scheme. Part III

critiques the current understanding of nullity and suggests that the

categories of absolute and relative nullities are more nuanced than

traditionally believed. Part IV posits the existence of a new category

of nullities—mixed nullities—and offers a new model for thinking

about nullities that moves away from the traditional dichotomous

scheme and embraces an entire spectrum for null transactions.

I. A BRIEF HISTORY OF NULLITY

Like so many civilian institutions, the concept of nullity in

Louisiana law can only be fully understood by going back to the

Romans. A proper exposition of the history of nullity requires a

basic overview of the treatment of nullities in Roman law, as the

basic concept of nullity in the civil law owes much to the Romans.

Although the Romans themselves did not employ the terms

“absolute” and “relative nullities,” they did recognize the same basic

effects that today are prescribed for nullities of each type.

A. Roman Law

As many others have noted, explaining the Roman system of

nullity is not an easy task. The Romans were not interested in

classifying nullities but rather were interested in whether an action

was available in a particular context or situation.6 Unfortunately,

however, “they did not pay too much attention to a neat analysis of

why an action could not be granted under certain circumstances and

what further ramifications that entailed.”7 Some insight, however,

can be gleaned. As Planiol noted:

4. PLANIOL, supra note 3, at 221.

5. Id.

6. REINHARD ZIMMERMANN, THE LAW OF OBLIGATIONS: ROMAN

FOUNDATIONS OF THE CIVILIAN TRADITION 679 (photo. reprint 1992) (1990).

7. Id.