Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or can be substituted for “Abracadabra!” when performing stage illusions. This week’s word is the latter.
Void ab initio (literally: void from the beginning) is a latin phrase that frequently appears in certain types of legal argument. While it sounds deliciously complicated and lawyerly, it has a fairly straightforward meaning, and several English phrases can serve just as well. It usually crops up when one party is arguing that no contract or comparable legal document (such as a will) exists. For accomplished practitioners, it serves to signal the form the rest of the argument will take, but to the uninitiated–like most legalese–it serves as a barrier to understanding.
This particular phrase is especially handy since it may be used by either the plaintiff or the defendant, depending on who wants the document in question declared void. It is crucial to note that it is not sufficient to merely assert that a document is void ab initio. The party making that assertion has to demonstrate that the document is void for some actual reason.
For instance, a plaintiff might argue that a will is void ab initio for a reason such as forgery, duress, or undue influence. This would prevent the will from being executed (since the courts would treat the will as if it did not exist) and the estate would be distributed according to a prior will or the intestacy statute of the state. A contract could likewise be void ab initio because of unconscionability or unfair dealings, which would result in the entire contract being voided. A defendant could make use of void ab initio for similar reasons so that the court would not force performance or award damages against them.
As a final note, it is important to distinguish void ab initio from voidable. A contract is voidable if there are flaws in it that give good reason to declare the contract invalid. These flaws may arise at any time during the life of the contract, and the parties may fix the contract in a number of ways, such as by acting as if it exists. A document that is void ab initio is treated as if it never existed in the first place.