Abrogate legal definition means to formally repeal or annul a law through an act of custom, constitutional authority, or the legislature. In insurance and contract law, it means to terminate or rescind a contract while in constitutional law, abrogation refers to Congress' power to revoke the sovereign immunity of a state, thereby authorizing suits against it.

Abrogation is the opposite of rogation and differs from:

  • Derogation, or the taking away of some sections of a law
  • Subrogation, or the substitution of a clause
  • Antiquation, or the refusal to pass the law, and
  • Dispensation, which sets aside the law in particular instances.

For instance, the Eighteenth Amendment of the Constitution (which prohibits the sale and manufacture of intoxicating liquors) was abrogated by enacting the Twenty-First Amendment.

Implied and Express Abrogation

Abrogation can be implied or express; it is express when a new law literally pronounces it either in particular terms when it abrogates some preceding laws (which must be named) or in general terms when the final clause repeals or abrogates all preceding laws which run contrary to the provisions stated in the new law.

Posteriora Derogant Prioribus

Implied abrogation occurs when a new law contains provisions that are contrary to those laid out in preceding laws, and in the absence of express abrogation of such laws, due to posteriora derogant prioribus. It can also occur when the motives for the enactment of such laws are no longer valid or in operation (ratione legis omnino cessante cessat lex). This occurs in instances when the order of things which caused the institution of such laws no longer exists.

Abrogation of Contract

Abrogation of contract is the cancellation of a section of a contract which has not been fulfilled. It can only be done by the contracting parties or other legally obligated parties. Although derogation of contract is the more technically accurate term (since only a part of the contract is done away with), it is usually referred to as abrogation.

For instance, an American Outdoor Company places an order for 3,000 sets of patio furniture from Xo Manufacturer in Asia. The agreement states that the delivery of the furniture sets should be done in three shipments of 1,000 sets, with each delivery made two weeks apart. Before the American Outdoor Company can receive the first shipment, a tsunami hits Asia, wreaking havoc across the continent and putting Xo Manufacturer out of business.

In this scenario, both contracting parties can choose to abrogate, effectively nullifying the contract since the current circumstances make it impossible for Xo Manufacturing to fulfill the terms of the contract. As such, any money paid by American Outdoor Company to Xo Manufacturing must be returned.

Common Law and Abrogation

In the U.S., a lot of legal issues are governed by common law, meaning that previous court decisions (which are based on society's customs and principles) are applied to legal cases whose circumstances are similar. Over the years, new laws are introduced that, in some cases, may contradict old laws and court decisions. If a statutory law (passed by legislative bodies) conflicts with common law, the latter is abolished/abrogated. However, if the statutory law conflicts with only a section of the common law, then only that portion is derogated (meaning that the provisions which are affected are abolished).

Abrogation Doctrine

During the formation of the U.S., the intention was for each of the states to maintain autonomy and have the same level of control over their internal affairs, including the creation and enforcement of its laws as the federal government had over foreign policy, diplomacy, and external affairs. The federal government also has the task of regulating relationships between states in the event of a conflict.

Abrogation of Constitutional Sovereignty

This sovereignty enabled each state to control its court system and dictate whether citizens can sue the state. Although Article I of the U.S. Constitution does not give Congress the power to abrogate the constitutional sovereignty of any state, it can authorize a lawsuit against individual states if an action of the state runs contrary to the exercise of its powers granted by the Constitution.

The United States Supreme Court has upheld the authority of Congress to allow private citizens to bring civil lawsuits against states, owing to the authority of the Fourteenth Amendment to enforce and protect the immunities, privileges, and civil rights of the people. Section 5 of the Fourteenth Amendment states that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

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