Void and Voidable (and Avoid)

Comprehending laws and contracts is impossible, unless we first learn the meaning of the words and phrases they contain.

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Void and Voidable (and Avoid)

Post by notmartha » Wed Dec 16, 2015 7:44 am

Editor’s post HERE brought up the fact that the terms “void” and “voidable” are often confused. I will also add to the list “avoid” and post a word study for each separately.

Those who choose to study further may want to peruse the following:

The Common Law by Oliver Wendell Holmes has a chapter on Void and Voidable Contracts HERE.


The Law Of Contracts by John William Smith, Vincent T. Thompson, John Douglass Brown, Jr. is found HERE.
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notmartha
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Avoid

Post by notmartha » Wed Dec 16, 2015 8:08 am

KJV References to “Avoid”

Sābab, Hebrew Strong's #5437, is used 154 times in the Old Testament. It is translated most often as turned, turn away/aside/back, remove, and compass. It is translated “avoid” 1 time, in the following verse:
1 Samuel 18:11 - And Saul cast the javelin; for he said, I will smite David even to the wall with it. And David avoided out of his presence twice.
Pāraʿ, Hebrew Strong's #6544, is used 16 times in the Old Testament. It is translated as refuse (3), uncover (3), naked (2), avenging (1), avoid (1), go back (1), bare (1), let (1), made naked (1), set at nought (1) and perish (1). It is translated as “avoid” in the following verse:
Proverbs 4:14-15 - Enter not into the path of the wicked, and go not in the way of evil men. Avoid it, pass not by it, turn from it, and pass away.
Ekklinō, Greek Strong's #1578, is used 3 times in the New Testament. It is translated as eschew (1), avoid (1), go out of the way (1). It is translated as “avoid” in the following verse:
Romans 16:17 - Now I beseech you, brethren, mark them which cause divisions and offences contrary to the doctrine which ye have learned; and avoid them.
Stellō, Greek Strong's #4724, is used 2 times in the New Testament. It is translated as avoid (1), and withdraw (one's) self (1). It is translated as “avoid” in the following verse:
2 Corinthians 8:20 - Avoiding this, that no man should blame us in this abundance which is administered by us:
Ektrepō, Greek Strong's #1624, is used 5 times in the New Testament. It is translated as turn aside (2), avoid (1), turn (1), turn out of the way (1). It is translated as “avoid” in the following verse:
1 Timothy 6:20 - O Timothy, keep that which is committed to thy trust, avoiding profane and vain babblings, and oppositions of science falsely so called:
Periistēmi, Greek Strong's #4026, is used 4 times in the New Testament. It is translated as shun (1), avoid (1), stand by (1), stand round about (1). It is translated as “avoid” in the following verse:
Titus 3:9 - But avoid foolish questions, and genealogies, and contentions, and strivings about the law; for they are unprofitable and vain.
Webster’s Dictionary of the English Language, 1828
AVOID', verb transitive [Eng. side, void, widow; Latin vidua, vito, evito. See Void.]
1. To shun; to keep at a distance from; that is, literally, to go or be wide from; as, to avoid the company of gamesters.
2. To shift off, or clear off; as, to avoid expense.
3. To quit; to evacuate; to shun by leaving; as, to avoid the house.
4. To escape; as, to avoid danger.
5. To emit or throw out; as, to avoid excretions. For this, void is now generally used.
6. To make void; to annul or vacate.
The grant cannot be avoided without injustice to the grantee.
7. In pleading, to set up some new matter or distinction, which shall avoid that is, defeat or evade the allegation of the other party. Thus, in a replication, the plaintiff may deny the defendant's plea, or confess it, and avoid it by starting new matter.

AVOID', verb intransitive To retire; to withdraw.
David avoided out of his presence. 1 Samuel 18:11. [Improper.]
2. To become void, vacant or empty.
A benefice avoids by common law.

AVOID'ABLE, adjective
1. That may be avoided, left at a distance, shunned or escaped.
2. That may be vacated; liable to be annulled.
Bouvier’s Dictionary of Law, 1856
AVOIDANCE, eccl. law. It is when a benefice becomes vacant for want of an incumbent; and, in this sense, it is opposed to plenarty. Avoidances are in fact, as by the death of the incumbent or in law.

AVOIDANCE, pleading. The introduction of new or special matter, which, admitting the premises of the opposite party, avoids or repels his conclusions. Gould on PI. c. 1 §24, 42.
Bouvier's Maxims
Interpretatio talis in ambiguis semper fienda, ut evitetur inconveniens et absurdum.
In ambiguous things, such a construction is to be made, that what is inconvenient and absurd is to be avoided.

Mala grammatica non vitiat chartam; sed in expositione instrumentorum mala grammatica quoad fieri possit evitanda est.
Bad grammar does not vitiate a deed; but in the construction of instruments, bad grammar, as far as it can be done, is to be avoided.

Malum hominun est obviandum.
The malice of men is to be avoided.

Qui timent, cavent et vitant.
They who fear, take care and avoid.

Talis interpretatio semper fienda est, ut evitetur absurdum, et inconveniens, et ne judicium sit illusorium. Interpretation is always to be made in such a manner, that what is absurd and inconvenient is to be avoided, so that the judgment be not nugatory.
Black's Law Dictionary, 1st Edition, 1891
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The Century Dictionary, an Encyclopedic Lexicon of the English Language, 1895
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Black’s Law Dictionary, 7th Edition
Avoid –
To render void <because the restrictive covenant was overbroad, the court avoided it>. Because this legal use of avoid can be easily confused with the ordinary sense of the word, the verb to void is preferable.

Avoidance –
1. The act of evading or escaping
2. The act of refraining from something
3. Voidance <avoidance of the agreement
4. Confession and Avoidance <the defendant filed an avoidance in an attempt to avert liability>



WEX Legal Dictionary
Constitutional Avoidance

Constitutional Avoidance is the principal that, if possible, the Supreme Court should avoid ruling on constitutional issues, and resolve the cases before them on other (usually statutory) grounds. In practice, what this often means is that if the Supreme Court is faced with two possible interpretations of a statute, one of which is plainly constitutional, and the other of which is of questionable constitutionality, the court will interpret the statute as having the plainly constitutional meaning, to avoid the hard constitutional questions that would come with the other interpretation.
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Void

Post by notmartha » Wed Dec 16, 2015 8:49 am

KJV References to “Void

Bōhû, Hebrew Strong's #922, is used 3 times in the Old Testament. It is translated as void (2), and emptiness (1). It is translated as “void” in the following verses:
Genesis 1:1-2 - In the beginning God created the heaven and the earth. And the earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters.
Jeremiah 4:23 - I beheld the earth, and, lo, it was without form, and void; and the heavens, and they had no light.
Pārar, Hebrew Strong's #6565, is used 50 times in the Old Testament. It is translated as break (25), make void (5), defeat (2), disannul (2), disappoint (2), frustrate (2), come to nought (2), break asunder (1), cause to cease (1), clean (1), dissolved (1), divide (1), miscellaneous translations (5). It is translated as “void” in the following verses:
Numbers 30:12-15 - But if her husband hath utterly made them void on the day he heard them; then whatsoever proceeded out of her lips concerning her vows, or concerning the bond of her soul, shall not stand: her husband hath made them void; and the LORD shall forgive her. Every vow, and every binding oath to afflict the soul, her husband may establish it, or her husband may make it void. But if her husband altogether hold his peace at her from day to day; then he establisheth all her vows, or all her bonds, which are upon her: he confirmeth them, because he held his peace at her in the day that he heard them. But if he shall any ways make them void after that he hath heard them; then he shall bear her iniquity.
Psalm 119:126 - It is time for thee, LORD, to work: for they have made void thy law.
ʾĀbad, Hebrew Strong's #6, is used 184 times in the Old Testament. It is translated as perish (98), destroy (62), lose (10), fail (2), surely (2), utterly (2), broken (1), destruction (1), escape (1), flee (1), spendeth (1), take (1), undone (1), void (1). It is translated as “void” in the following verse:
Deuteronomy 32:28 - For they are a nation void of counsel, neither is there any understanding in them.
Nāʾar, Hebrew Strong's #5010, is used 2 times in the Old Testament. It is translated as made void (1) and abhorred (1). It is translated “void” in the following verse:
Psalm 89:39 - Thou hast made void the covenant of thy servant: thou hast profaned his crown by casting it to the ground.
Ḥāsēr, Hebrew Strong's #2638, is used 19 times in the Old Testament. It is translated as void (6), want (5), lack (4), fail (2), destitute (1), need (1). It is translated “void” in the following verses:
Proverbs 7:7 - And beheld among the simple ones, I discerned among the youths, a young man void of understanding,
Proverbs 10:13 - In the lips of him that hath understanding wisdom is found: but a rod is for the back of him that is void of understanding.

Proverbs 11:12 - He that is void of wisdom despiseth his neighbour: but a man of understanding holdeth his peace.
Proverbs 12:11 - He that tilleth his land shall be satisfied with bread: but he that followeth vain persons is void of understanding.
Proverbs 17:18 - A man void of understanding striketh hands, and becometh surety in the presence of his friend.

Proverbs 24:30 - I went by the field of the slothful, and by the vineyard of the man void of understanding;
Rêqām, Hebrew Strong's #7387, is used 16 times in the Old Testament. It is translated as empty (12), without cause (2), void (1), vain (1). It is translated as “void” in the following verse:
Isaiah 55:11 - So shall my word be that goeth forth out of my mouth: it shall not return unto me void, but it shall accomplish that which I please, and it shall prosper in the thing whereto I sent it.
Bāqaq, Hebrew Strong's #1238, is used 9 times in the Old Testament. It is translated as empty (5), make void (1), emptiers (1), fail (1), utterly fail (1). It is translated as “make void” in the following verse:
Jeremiah 19:7 - And I will make void the counsel of Judah and Jerusalem in this place; and I will cause them to fall by the sword before their enemies, and by the hands of them that seek their lives: and their carcasses will I give to be meat for the fowls of the heaven, and for the beasts of the earth.
Mebûqâ, Hebrew Strong's #4003, is used 1 time in the Old Testament. It is translated as “void” in the following verse:
Nahum 2:10 - She is empty, and void, and waste: and the heart melteth, and the knees smite together, and much pain is in all loins, and the faces of them all gather blackness.
Aproskopos, Greek Strong's #677, is used 3 times in the New Testament. It is translated as void of offence (1), none offence (1), without offence (1). It is translated as “void of offence” in the following verse:
Acts 24:16 - And herein do I exercise myself, to have always a conscience void of offence toward God, and toward men.
Katargeō, Greek Strong's #2673, is used 27 times in the New Testament. It is translated as destroy (5), do away (3), abolish (3), cumber (1), loose (1), cease (1), fall (1), deliver (1), and miscellaneous translations (11). It is translated as “void” in the following verse:
Romans 3:31 - Do we then make void the law through faith? God forbid: yea, we establish the law.
Kenoō, Greek Strong's #2758, is used 5 times in the New Testament. It is translated as make void (2), make of none effect (1), make of no reputation (1), be in vain (1). It is translated as “made void” in the following verses:
Romans 4:14 - For if they which are of the law be heirs, faith is made void, and the promise made of none effect:
1 Corinthians 9:15 - But I have used none of these things: neither have I written these things, that it should be so done unto me: for it were better for me to die, than that any man should make my glorying void.
Webster’s Dictionary of the English Language, 1828
VOID, adjective [Latin viduus, divido. Gr.]
1. Empty; vacant; not occupied with any visible matter; as a void space or place. 1 Kings 22:10.
2. Empty; without inhabitants or furniture. Genesis 1:2.
3. Having no legal or binding force; null; not effectual to bind parties, or to convey or support a right; not sufficient to produce its effect. Thus a deed not duly signed and sealed, is void. A fraudulent contract is void or may be rendered void.
My word shall not return to me void but it shall accomplish that which I please. Isaiah 55:11.
I will make void the counsel of Judah and Jerusalem in this place. Jeremiah 19:7.
4. Free; clear; as a conscience void of offense. Acts 24:16.
5. Destitute; as void of learning; void of reason or common sense.
He that is void of wisdom, despiseth his neighbor.
Proverbs 11:12.
6. Unsupplied; vacant; unoccupied; having no incumbent.
Divers offices that had been long void
7. Unsubstantial; vain.
Lifeless idol, void and vain.

VOID space, in physics, a vacuum.
1. To make void; to violate; to transgress.
They have made void thy law. Psalms 119:126.
2. To render useless or of no effect. Romans 4:14.

VOID, noun An empty space; a vacuum.
Pride, where wit falls, steps in to our defense, and fills up all the mighty void of sense.
Th' illimitable void

VOID, verb transitive
1. To quit; to leave.
Bid them come down, or void the field.
2. To emit; to send out; to evacuate; as, to void excrementitious matter; to void worms.
3. To vacate; to annul; to nullify; to render of no validity or effect.
It had become a practice - to void the security given for money borrowed.
4. To make or leave vacant.

VOID, verb intransitive To be emitted or evacuated.
Bouvier’s Dictionary of Law, 1856
VOID, contracts, practice.
1. That which has no force or effect.

2. Contracts, bequests or legal proceedings may be void; these will be severally considered.

3. 1. The invalidity of a contract may arise from many causes. 1. When the parties have no capacity to contract; as in the case of idiots, lunatics, and in some states, under their local regulations, habitual drunkards. Vide Par ties to contracts,

4. 2. When the contract has for its object the performance of an act malum in se; as a covenant to rob or kill a man, or to commit a breach of the peace.

5. 3. When the thing to be performed is impossible; as, if a man were to covenant to go from the United States to Europe in one day. Co. Lit. 206, b. But in these cases, the impossibility must exist at the time of making the contract; for although subsequent events may excuse the performance, the contract is not absolutely void; as, if John contract to marry Maria, and, before the time appointed, the covenantee marry her himself, the contract will not be enforced, but it was not void in its creation. It differs from a contract made by John, who, being a married man, and known to the covenantee, enters into a contract to marry Maria during the continuance of his existing marriage, for in that case the contract is void.

6. 4. Contracts against public policy; as, an agreement not to marry any one, or not to follow any business; the one being considered in restraint of marriage, and the other in restraint of trade.

7. 5. When the contract is fraudulent, it is void, for fraud vitiates everything. As to cases when a condition consists of several parts, and some are lawful and others are not, see article Condition.

8. 2. A devise or bequest is void:. 1. When made by a person not lawfully authorized to make a will; as, a lunatic or idiot, a married woman, and an infant before arriving at the age of fourteen, if a male, and twelve if a female. 2. When there is a defect in the form of the will, or when the devise is forbidden by law; as, when a perpetuity is given, or when the devise in unintelligible. 3. When it has been obtained by fraud. 4. When, the devisee is dead. 5. And when there has been an express or implied revocation of the will. Vide Legacy; Will.

9. 3. A writ or process is void when there was not any authority for issuing it, as where the court had no jurisdiction, In such case, the officers acting under it become trespassers, for they are required, notwithstanding it may sometimes be a difficult question of law, to decide whether the court has or has not jurisdiction.
Bouvier's Maxims
In commodo haec pactio, ne dolus praestetur, rata non est.
If in a contract for a loan there is inserted a clause that the borrower shall not be answerable for fraud, such clause is void.

Perpetua lex est, nullam legem humanum ac positivam perpetuam esse; et clausula quae abrogationem excludit initio non valet.
It is a perpetual law that no human or positive law can be perpetual; and a clause in a law which precludes the power of abrogation is void ab initio.

Quando plus fit quam fieri debet, videtur etiam illud fieri quod faciendum est.
When more is done than ought to be done, that shall be considered as performed, which should have been performed; as, if a man having a power to make a lease for ten years, make one for twenty years, it shall be void for the surplus.

Quod initio vitiosum est, non potest tractu temporis convalescere.
Time cannot render valid an act void in its origin.

Rei turpis nullum mandatum est.
A mandate of an illegal thing is void.

Relation shall never make good a void grant or devise of the party.

Remainder to a person not of a capacity to take at the time of appointing it, is void.
Black's Law Dictionary, 1st Edition, 1891
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Black’s 7th –
Void
1. Of no legal effect; null. The distinction between void and voidable is often of great practical importance. Whenever technical accuracy is required, void can be properly applied only to those provisions that are of no effect whatsoever – those that are an absolute nullity.

Facially void. (of an instrument) patently void upon an inspection of the contents. – Also termed void on its face.

Void ab initio. Null from the beginning, as from the first moment when a contract is entered into. A contract is void ab initio if it seriously offends law or public policy, in contrast to a contract that is merely voidable at the election of one party to the contract.

Void for vagueness. 1. (Of a deed or other instrument affecting property) having such an insufficient property description as to be unenforceable. 2. (Of a penal statute) establishing a requirement or punishment without specifying what is required or what conduct is punishable, and therefor void because violative of due process.

2. Voidable. Although sense 1 above is the strict meaning of void, the word is often used and construed as bearing the more liberal meaning of “voidable.”
WEX Legal Dictionary
Void

Having no legal effect from the start. Thus, a void contract is invalid from the start of its purported closing (having no legal effect, it does not change the legal relationship between the parties involved).

Void for vagueness

1) In criminal law, a declaration that a law is invalid because it is not sufficiently clear. Laws are usually found void for vagueness if, after setting some requirement or punishment, the law does not specify what is required or what conduct is punishable. For more information, see vagueness doctrine.
2) Under vagueness doctrine, a statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.
3) In property law, a declaration that a deed or other instrument purporting to affect property rights is invalid because it lacks a sufficiently clear description of the property.

Void marriage

A marriage that was for some reason never valid from the start and cannot be made valid. Common reasons for a court to find a marriage void ab initio are that the marriage is incestuous, polygamous, or a same-sex marriage.
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Voidable

Post by notmartha » Wed Dec 16, 2015 8:57 am

KJV References to “Voidable”

none

Webster’s Dictionary of the English Language, 1828
VOID'ABLE, adjective That may be annulled or made void, or that may be adjudged void, invalid or of no force.
- Such administration is not void, but voidable by sentence.
Bouvier’s Dictionary of Law, 1856
VOIDABLE.

1. That which has some force or effect, but which, in consequence of some inherent quality, may be legally annulled or avoided.

2. As a familiar example, may be mentioned the case of a contract, made by an infant with an adult, which may be avoided or confirmed by the former on his coining of age. Vide Parties, contracts.

3. Such contracts are generally of binding force until avoided by the party having a right to annul them.
Black's Law Dictionary, 1st Edition, 1891
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Black's 7th
Voidable –
Valid until annulled; esp., (of a contract) capable of being affirmed or rejected at the option of one of the parties. This term describes a valid act that may be voided rather than an invalid act that may be ratified.
WEX Legal Dictionary
Voidable

Valid unless rejected by a party with the legally protected option of doing so. Thus, state law may allow minors to either affirm or reject any promises made in a contract by calling such contracts voidable.

Voidable marriage

A marriage that is valid until declared invalid. The grounds for invalidation of marriage vary depending on state. Common grounds for voiding a marriage include that one of the parties is below the age of consent, a party was incapable of consenting to marriage due to mental incapacity or mental illness, or a party was physically incapable of entering into marriage due to impotence or venereal disease. Other grounds include fraud, force, or duress.
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Re: Avoid, Void and Voidable

Post by notmartha » Thu Jan 21, 2016 2:07 pm

Exercising Your 'Right of Avoidance” by Randy Lee was originally published in five parts in Issues the Nineteenth through Twenty-third of Matters concerning His Lawful assembly (From The Christian Jural Society News). I combined and formatted the articles for ease of reading.
Avoidance.pdf
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