Sec 28

Much difficulty, as we will hereafter see, has arisen from the inexact use, in decisions referring to contracts, of the words " void" and " voidable." A contract is executed under the influence of fraud, the parties being competent to agree as to the subject matter of the contract, and actually agreeing. It is sub-quently set aside, on account of the fraud by which the assent of one of the parties was induced. The court, in pronouncing the avoidance of the contract, declares that it is "void." In one sense it is, after it is avoided. But the term "void contract" (contradictory as the expression is, since, if it was a "contract" it was not always "void," and if it was always "void" it never was a " contract") implies, that a " contract"

" Voidable" distinguished from "void."

1 In England, where the message is delivered to the wrong person, the receiver has no remedy against the company, Dickson v. Tel. Co., L. R. 2 C. P. D. 62; aff. on app. 2 C. P. D. 1 ;- though it is otherwise in this country, Wh. on Neg. sec 758. That the sendee has no claim for non-delivering, see Wh. on Neg. sec 757.

2 See supra, sec 18. Willes, J., God win v. Francis, L. R. 5 C. P. 295.

3 Wh. on Ev. sec 1128; Minnesota Linseed Oil Co. v. Lead Co., 4 Dill. 431; Durkee v. R. R., 29 Vt. 127 ; Trevor v. Wood, 36 N. Y. 307; see 12 Cent. L. J. 365.

1 Supra, sec 18.

never existed between the parties, whereas in fact a contract did exist between the parties, though it was afterwards avoided. On the other hand, the 'term "voidable" is often used in reference to apparent agreements which are not real agreements, and which are, therefore, not contracts at all. Now the true distinction is not, as is sometimes said, that a voidable contract is a contract with only one party to it (since there can be no contract without two contracting parties1), but that it is an agreement which one of the parties is at liberty, on some future contingency, to treat as if it were not binding.2-The term "void," on the contrary, can in strictness only be applied, in this connection, to transactions which are either (1) absolutely prohibited by law, or (2) wanting in one of the necessary constituents of a valid agreement, %. e., two parties capable of consenting, or a concurrence of minds as to a particular object of consent.3 - While such, however, is the proper use of the term, it is impossible to deny to it a secondary meaning limiting invalidity to parties. Of this we have illustrations in notes executed on Sunday. These, under statute, have been repeatedly declared to be void,1 yet in the hands of bona fide indorsees without notice, such notes have been held to bind.2 Nor can property sold and delivered in pursuance of a Sunday contract, void though it be, be recovered back.3

1 Supra, sec 2.

2 That contracts of infants are at common law, in this sense, voidable, see infra, sec 31, 55, 56 ; that contracts of lunatics are thus voidable, see sec 114 et seq., 117a; that it is so as to duress, see sec 154; that it is so as to agreements induced by fraud, see infra, sec 283 ; .that, on the other hand, there is no contract when the parties do not agree as to the same thing, see supra, sec 4, infra, sec 177; and see, generally, Rounsavell ?;. Pease, 45 Wis. 506.

The distinction given by Mr. Pollock (3d ed. 7) is substantially that of the text. "An agreement or other act which is void has from the beginning no legal effect at all, save in so far as any party to it incurs penal consequences, as may happen where a special prohibitive law both makes the act void and imposes a penalty. Otherwise no person's rights, whether he be a party or a stranger, are affected. A voidable act, on the contrary, takes its full, proper, and legal effect, unless and until it is disputed and set aside by some person entitled so to do." Mr. Pollock justly objects to the definition in the Indian contract act, that "an agreement not enforceable in law is said to be void," for the reason that there are agreements that cannot be sued upon, and yet are recognized by law for other purposes, and have legal effects in other ways." He adds: "Perhaps it would be better to say that a voidable contract is an agreement such that one of the parties is entitled at his option to treat it as never having been binding on him."

3 That " void" when used in formal documents is construed to mean "voidable" in all cases where there is a mind to contract and a thing contracted about, see Lincoln Coll. Ca., 3 Co. Rep. 586 ; Bryan v. Banks, 4 B. & Ald. 401; Malins v. Freeman, 4 Bing. N. C. 395 ; and that this is the case in construction of acts of parliament, see Davenport v R., L. R. 3 Ap. Ca. 128 ; Governors, etc. v. Knotts, L. R. 4 Ap. Ca. 324, cited Pollock, 3d ed. 52.

1 Infra, sec 382. 2 Infra, $ 386.

3 Infra, sec 383.