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There are two types of duress. Those that result from threat of physical harm, can "void" a contract, and those from non-phsyical threats make a contract "voidable."
What is the difference between the two? Does "void" in the first case mean "automatic" void, and "voidable" in the second case mean that you have to take legal steps to enforce it?
If something Is void then it never legally happened.
In the context of a contract it means there never was a contract that a court can enforce.
This can lead to perverse outcomes. For example, if I supplied you with widgets under a void contract, contract law will not force you to pay for them nor force you to return the widgets. Equitable remedies may be available to me (or not) but contract law won’t help.
The contract is enforceable by the person who has that right but only by the other party if the person with the right to make it void declines to do so.
For the widget example, if I can make it void, I can enforce the payment provision on you but if you can make it voidable I can only get payment from you if you choose not to make it void.
Dale M is savvier in the law than I, but I thought to quote some contract law textbooks from England. A picture is worth thousand words!
Poole, Shaw-Mellors. Contract Law Concentrate (4 ed 2019). p 31.
Richard and Damian Taylor. Contract Law Directions (2019 7 ed). p 55.
Agreements and contracts
‘Agreements’ and ‘contracts’ are often used interchangeably in the law. Reference is sometimes made to a ‘contract’ but later it is revealed that in fact the contract is void and never existed (e.g. due to lack of intention to create legal relations). It is more accurate to say that only an agreement existed (i.e. that there was offer and acceptance) which did not give rise to contractual obligations or a contract. Rather than writing about ‘void contracts’ (which have never existed as contracts and so are ‘non-contracts’) we will refer in this Part of the book to agreements which may or may not give rise to contracts. If the agreement lacks one of the necessary ingredients for creating a contract (e.g. it is not intended to create legal relations or lacks consideration) then it will never form a contract and its description simply as an agreement will be appropriate. If all of the creation requirements are met then the agreement may form a contract and it will be appropriate to then describe it as such. Later on in this book you will come across voidable, rescinded and terminated contracts. Unlike ‘void contracts’, these actually are (or were originally) valid contracts, but the courts have decided to unravel or cancel them for some reason. The important difference is that a contract has been formed in these cases, whereas a ‘void contract’ never even gets beyond being, at most, an agreement and is possibly not even that if it turns out that the ‘agreement’ lacked certainty, which is the first issue we will look at.
Mindy Chen-Wishart. Contract Law (2018 6 edn). p 260.
