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
 
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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.

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