Abrogate

Abrogate (abrogation) generally refers to the cancellation, annulment or repeal of either a law, right or formal agreement.

Laws will be abrogated if a statute is repealed by Parliament or if an Act is specifically enacted to abolish a rule of law established by the courts. The issue of the abrogation of common law was highlighted by Gibbs J in State Government insurance Commission v Trigwell (1979) 142 CLR 617, whereby he commented that “a settled rule is not abrogated because the conditions in which it was formulated no longer exist… The question whether the rule should be altered, and if so how, is clearly one for the legislature rather than for the courts”. This statement is ultimately a reflection on the primacy of the legislative arm of government, which has the power to override common law principles through the creation of statute.

In contract law, abrogate refers to the rescission or termination of a contract. A contract may be rescinded on the basis that the contract is void or voidable (due to vitiating factor such as misrepresentation or mistake) and parties are put back in their pre-contractual positions. Termination on the other hand arises in the circumstances where there is a breach or repudiation of a contract. At common law, abrogate means the right to terminate for breach of contract. This right will arise if a party breaches an essential term (condition) or commits a serious breach of a non-essential term (intermediate).