Voidable

• Author: Jeffrey Lehman, Shirelle Phelps

Page 245

That which is not absolutely void, but may be avoided.

In contracts, voidable is a term typically used with respect to a contract that is valid and binding unless avoided or declared void by a party to the contract who is legitimately exercising a power to avoid the contractual obligations.

A contract may be voidable on the grounds of FRAUD, mistake, MISREPRESENTATION, lack of capacity, duress, UNDUE INFLUENCE, or abuse of a fiduciary relationship. A contract that is based on one of these grounds is not automatically void but is voidable at the option of the party entitled to avoid it. For example, a person who was induced by fraud to enter into a contract may disclaim the contract by taking some positive action to disaffirm the contract. Or the victim of the fraud may ratify the contract by his or her conduct or by an express affirmation after acquiring full knowledge of the facts. Likewise, a contract between a minor and another party is generally viewed as voidable by the minor. The minor may legally decide to ratify the contract or disaffirm the contract.

A voidable marriage is a marriage that is valid when entered into and remains completely valid until a party obtains a court order nullifying the relationship. The parties may ratify a voidable marriage upon removal of the impediment preventing a lawful marriage, thus making the union valid. Living together as HUSBAND AND WIFE following the removal of the impediment typically constitutes a ratification. A voidable marriage can only be attacked by a direct action brought by one of the parties against the other and therefore cannot be attacked after the death of a spouse. It differs from a void marriage where no valid marital relationship ever existed.

Most jurisdictions hold that the marriage of a...