In the field of law, absolute and relative nullity constitute the penalties applicable to non-observance of any mandatory or prohibitive rule of law.
Legal acts are means of free expression of human will, which produce legal effects in accordance with objective law and a specific legal system.
From a general perspective, they are characterized as creators of rights between the intervening parties.
Contracts, manifestations of will, transfer of rights and marriage are some examples of the most common legal acts.
Absolute and relative nullity
Nullities are legal sanctions that affect the validity of legal acts, due to substantial or formal defects and causes or impediments that may have affected them.
Absolute nullity
Those legal acts that violate good customs and public order are called null or totally null. This nullity originates with the birth of the act to which it corresponds.
It operates with respect to those acts affected by some patent and manifest vice in its celebration. That is, generated by omission of a requirement expressly required by law as a condition of its validity.
This type of nullity is also called nullity of right, and affects the social order since it does not require confirmation.
It can be requested by anyone with an interest: the Public Ministry, the parties, their creditors and heirs.
The action is imprescriptible and inalienable and takes effect retroactively; that is, once the judicial sentence that declares it is produced.
The acts are null:
- Held by absolutely or relatively incapable persons acting without accredited legal representation.
- Awarded without the authorization of one of the parties called to do so by law.
- Awarded through simulation or fraud.
- Whose object and cause are illegal or immoral and are expressly prohibited by law.
- Lacking the respective formalities.
- When they have been held with simulation or fraud vices.
The legal doctrine maintains that null acts are equated to non-existent ones. This is due to the fact that its declaration extinguishes the past and present effects, replacing the prevailing conditions before its celebration.
Relative nullity
The legal acts affected by relative nullity are called voidable. The voidability operates with respect to legal acts that have been flawed from their birth, but whose vice only offends the intervening parties.
Therefore, it takes effect only after its declaration. This type of nullity affects acts celebrated in the absence of any required requirement related to the character according to which the parties act.
For this reason they are considered valid as long as they are not annulled, and their declaration always occurs at the request of the interested party, never ex officio.
The acts are voidable:
- When it is found that one of the parties has acted with an accidental disability.
- When it is shown that at the time of the celebration the incapacity of any of the parties was unknown.
- When it is shown that at the time of the celebration the prohibition on the object of the act was unknown.
- When they have been celebrated with vices of error, fraud or violence.
References
- Hijma, J. (nd). The Concept of Nullity. Retrieved on November 30, 2017 from: openaccess.leidenuniv.nl
- Farrera, C. (1925). Nullity and Termination Actions. In: ulpiano.org.ve
- López, J. (sf). Of the Nullity of the Legal Acts. Retrieved on November 30, 2017 from: Derecho.uba.ar
- Miramón, A. (nd). Theory of Nullities and Ineffectiveness of the Legal Act. Retrieved on November 30, 2017 from: biblio.juridicas.unam.mx
- Scalise, R. (2014). Rethinking the Doctrine of Nullity. At: digitalcommons.law.lsu.edu