Contract invalidity: absolute and relative nullity, time limits and effects

Nullity is the sanction applicable to a contract concluded in breach of statutory validity requirements, unless the law provides another sanction. The Civil Code distinguishes absolute from relative nullity. Classification depends on the rule breached and the interest it protects; merely alleging an irregularity does not automatically establish invalidity.

Absolute nullity

Nullity is absolute where the rule protects a general interest or the law expressly provides that regime. An interested person may invoke it by action or defence, and the court raises it of its own motion under the statutory conditions.

As a rule, an action for a declaration of absolute nullity is not subject to limitation. Nevertheless, check any special rule and the precise nature of the relief sought.

Relative nullity

Relative nullity concerns breach of a rule protecting a particular interest, for example in specified cases of incapacity or defective consent. Only the person whose interest is protected may generally invoke it, and the court does not ordinarily raise it of its own motion.

The annulment action is subject to limitation, with starting points and exceptions depending on the ground relied on. Relative nullity may also be raised as a defence under the Civil Code’s conditions.

Confirmation and consequences

A voidable contract may be confirmed by the entitled person if the statutory conditions are met. Absolute nullity is not ordinarily capable of confirmation, subject to the statutory exceptions.

A declaration of nullity or annulment generally produces the Civil Code’s consequences, including restitution of performances. Special rules and third-party rights may affect that assessment.

What to check in an individual case

Start with the contract and the documents surrounding its conclusion: required form, capacity, consent, subject matter, cause, registration or publicity requirements and any special legislation.

Identify the rule breached, the interest protected and the remedy requested. The applicable period cannot be determined solely from the label “absolute” or “relative” nullity.

See the Civil Code, Articles 1246–1254. This article provides general information; assessing a particular contract requires its documents and the relevant deadlines.