Void and Voidable Agreements

(d) Void and Voidable Agreements

Void agreement — Section 2(g): "An agreement not enforceable by law is void." A void

agreement is void from the very beginning (void ab initio) — the law never recognised it as

creating any obligation at all. The classic example examined throughout this unit is an

agreement with a minor: because a minor lacks the capacity to give a legally recognised consent,

an agreement with a minor is void from the outset, not merely voidable (established by the

landmark case Mohori Bibee v. Dharmodas Ghose, 1903 — discussed further in sub-topic (e)).

Void contract — Section 2(j): distinct from a void agreement in one important respect — a

void CONTRACT was, at the time it was made, a perfectly valid, enforceable contract, which later

ceases to be enforceable and becomes void (e.g. a contract that becomes impossible to perform

due to a subsequent change in law, or the destruction of its subject-matter).

Voidable agreement/contract — Section 2(i): "An agreement which is enforceable by law at the

option of one or more of the parties thereto, but not at the option of the other or others, is a

voidable contract." A voidable contract typically arises where consent to the agreement was not

free — it was caused by coercion, undue influence, fraud, or misrepresentation (see sub-topic

(f)). The agreement is perfectly valid and binding UNLESS AND UNTIL the party whose consent was

not free chooses to avoid (rescind) it; until then, it can be performed and enforced normally.

Unenforceable agreement: an agreement that is otherwise valid in substance, but which cannot

be enforced in a court of law because of some purely technical or procedural defect — most

commonly, want of proper stamping, want of a required registration, or the claim being barred by

the law of limitation. Unlike a void agreement, an unenforceable agreement can often be CURED and

become enforceable once the technical defect is remedied (e.g. paying the deficient stamp duty).

Illegal agreement: an agreement whose object or consideration is forbidden by law (Section

23) — for example, an agreement to commit a crime, or an agreement to smuggle goods. An illegal

agreement is always void, but the reverse is not true — a void agreement need not be illegal.