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DISTINCTION BETWEEN VOID & VOIDABLE

Dictum

Denning in Macfoy v. United Africa Co. Limited (1961) 3 All E.R. 1169 at 1172-3:- “The defendant here sought to say therefore that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside; and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it. So will this statement of claim be a support for the judgment, if it was only voidable and not void.”

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VOID vs VOIDABLE

Denning, L.J. (as he then was) observed in Wiseman v Wiseman (1953-56) Probate Div. 79 at p.91:- “The distinction between a transaction which is void and one that is only voidable, as I understand it is this if a transaction is void then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order to set it aside. It is automatically null and void without more ado although it is sometimes convenient to have the court declare it to be so.”

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IF AN ACT IS VOID, THEN IT IS IN LAW A NULLITY

In any case, having declared the sale void, there was nothing to set aside. For if an act is void, then it is in law a nullity. It is not only bad but incurably bad and there is no need for an order to set it aside for there is nothing to set aside. See...

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