Theories On The Effect Of Disability Of Will On The Validity Of The Contract
Invalidity Theory:
According to some authors in the doctrine and the Swiss Federal Court (Picasso decision dated 1988), the contract is invalid for both parties in the event of an injury of will. The right to assert this invalidity belongs only to the party whose will is impaired. If the party whose will has been impaired does not assert this invalidity within 1 year, or if he/she consents to the contract, the contract is deemed invalid from the moment it was first concluded.
Cancellation Theory:
According to this theory, the contract is valid from the beginning in case of will defects. However, the will
If the injured party exercises his/her right of cancellation, the contract shall be deemed invalid from the moment it was first concluded. In cases where the party whose will is injured does not use the right of cancellation within 1 year, it will not be able to use this right again.
Partial Invalidity:
According to this view, in case of will disabilities, the contract does not bind the person whose will is disabled. The other party is bound by the contract. Here again, the right to cancel the contract must be exercised within 1 year. Otherwise, it will not bind the party whose will is injured at the end of 1 year.
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