The term abrogation refers to the cancelling, repealing, abolishing, or annulling of something. In short, abrogation is the “undoing” of a thing by authoritative action. In a legal sense, abrogation is most often used in the context of revoking terms of a contract, or of repealing a law. To explore this concept, consider the following abrogation definition.
Definition of Abrogation
- The act of repealing a thing.
- The act of abolishing by official means, or of annulling something by an authoritative act.
Circa 1530 Latin abrogationem (“repeal of a law”)
What is Abrogation
Abrogation is used to annul a law, or to cancel a contract, with just cause, and with authority. Simply disagreeing with a law, or changing one’s mind about a contract, is not just cause for abrogation. Abrogation can only be done by the makers of the law or contract. A law can only be repealed by the legislative body that made it. A contract can only be cancelled by the parties who entered into it. A law, ordinance, or decree can be repealed in its entirety, or only certain portions of it can be abolished, which is referred to as “derogation.”
Abrogation of a Contract
Abrogation of a contract refers to the cancellation of a portion of the contract that has not yet been fulfilled. This may only be done by the original, or legally obligated, parties to the contract. While this is more accurately “derogation” of the contract, as it involves only a portion of the contract, it is commonly referred to as abrogation.
Example of Abrogation of Contract
American Outdoor Company orders 3,000 patio furniture sets from Xo Manufacturer in an Asian country. The furniture sets are to be delivered in three shipments of 1,000, two weeks apart. Before American Outdoor receives a single shipment, a Tsunami wreaks havoc in Asia, putting Xo out of business, at least for the foreseeable future. The parties can choose to abrogate the contract, effectively nullifying it, because the situation makes it impossible for the manufacturer to deliver. In this example of abrogation, Xo would be expected to return any money already paid by American Outdoor.
Abrogation of Law
In the United States, many legal issues are governed by common law, which means that prior court decisions, often grounded in society’s principles and customs, are applied to cases with similar circumstances. As the years go by, new laws are often introduced, which contradict old laws and common law decisions. If a statutory law, which is a law passed by a legislative body, conflicts with a common law, the common law is abrogated (abolished). If the statutory law conflicts only with a portion of a common law, that portion may be derogated, which means that only those specific provisions are abolished.
When the U.S. was formed, the intent was for each state to maintain autonomy, having the same level of control over its internal affairs, including its own laws, as the federal government holds over external affairs, diplomacy, and foreign policy. The federal government was also given the responsibility of regulating relationships between the states, should conflict arise.
This sovereignty of states enabled each state to control its own court system, and to dictate whether private citizens have a right to sue the state. While Congress cannot use its authority granted by Article I of the U.S. Constitution to abrogate any state’s constitutional sovereignty, it does have the authority to authorize a lawsuit against an individual state, when the subject of the lawsuit is an action of the state in pursuant to powers granted to it by the Constitution.
The U.S. Supreme Court has upheld Congress’ authority to allow private civil lawsuits against states, citing the Fourteenth Amendment’s grant of authority to protect and enforce the civil rights, privileges, and immunities of the people. Section 5 of the Fourteenth Amendment states:
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
In addition to being able to allow people to sue their states for certain issues, abrogation doctrine enables citizens of one state to sue another state for certain violations of their rights.
Abrogation Example in Early America
In 1792, Alexander Chisholm, the executor of an estate that provided goods to the state of Georgia during the Revolutionary War, sued the state for repayment under its agreement with the then-deceased Robert Farquahar. The defendant, the state of Georgia, refused to appear at court, citing its authority as a sovereign state to consent, or refuse to consent, to be sued.
The matter was heard by the U.S. Supreme Court, which ruled in favor of the plaintiff executor, citing Article III, Section 2 of the U.S. Constitution, which abrogates the sovereign immunity of the individual states, granting authority to federal courts to hear disputes between the states, as well as between private citizens and any state. Article III, Section 2 extends federal judicial power:
“… to Controversies between two or more States; – between a State and Citizens of another State; – between Citizens of different States; – between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
In this early example of abrogation, the Supreme Court’s decision led to the creation of the Eleventh Amendment to the Constitution, which was ratified in 1795. As a result, all subsequent court actions regarding the case filed by Chisholm, were dismissed.
Related Legal Terms and Issues
- Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
- Common Law – Laws that are based on court or tribunal decisions, which govern future decisions on similar cases.
- Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
- Just Cause – A reasonable and lawful basis for action.
- Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
- Sovereign Immunity – A judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent.
- Statutory Law – A written law passed by a legislature on the state or federal level.