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Nullity is a legal institution in the general part of civil law. The general rules governing the grounds for nullity of legal transactions are mandatory legal provisions contained in Article 26 of the Obligations and Contracts Act (ZZD). Article 26(1) and (2) cover two groups of grounds for nullity. The grounds in paragraph 1 are general, and the rules are referential in nature (except for the fourth proposition of Article 26(1)) and cannot be applied independently. By contrast, the grounds in Article 26(2) apply independently, without needing to be linked to other legal provisions. Persons cannot establish grounds for nullity other than those laid down in legislation, nor exclude statutory grounds for nullity in their relations. Under Article 44 of the ZZD, the mandatory rules on contracts also apply to unilateral declarations of intent that create, modify or terminate rights and obligations.<\/p>\n
Alongside the general rules in Article 26, the legislature has separately provided for a number of specific cases of void transactions and void clauses in both contracts and unilateral transactions. Article 26 lays down general rules relevant to most transactions, without excluding specific statutory provisions. For example, under Article 75(2) of the Inheritance Act (ZN), a partition of an estate without the participation of any of the co-heirs is entirely void. Under Article 209 of the ZZD, a sale subject to a repurchase clause is also entirely void. Under Article 94 of the ZZD, however, only a clause excluding or limiting in advance the debtor’s liability for intentional misconduct or gross negligence is void, rather than the entire contract.<\/p>\n
All provisions concerning nullity, not merely the general rules, are mandatory. The grounds for nullity are linked to infringements of other mandatory legal rules governing the validity of transactions as regards their content, procedure or manner of conclusion. Void transactions do not produce their intended legal effects; nullity arises by operation of law. Where a legal dispute exists, nullity may be raised by a declaratory action or by a defence in pending proceedings. The law imposes no time limit on invoking nullity. Any person with a legal interest may rely on it, and the court considers it of its own motion, but does not rule on it in the operative part of the judgment unless expressly requested to do so.<\/p>\n
Void transactions can be classified according to various distinguishing criteria. The main classifications are: 1) by the ground for nullity; 2) wholly and partially void transactions; and 3) other types, such as transactions capable or incapable of conversion into another valid transaction, absolutely void transactions and transactions whose invalidity remains pending.<\/p>\n
If you have questions about void contractual clauses or a void transaction, it is best to consult an experienced and qualified lawyer practising in litigation before the courts.
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