Is the ‘Mere Equity’ to Rescind a Legal Power? Unpacking Hohfeld’s Concept of ‘Volitional Control’

Abstract

Abstract Private lawyers owe a particular debt of gratitude to Hohfeld, given their widespread use of his scheme. An example is equitable rescission, where the entitlement to rescind a voidable transfer is now widely understood to be a Hohfeldian legal power. Yet, though scholars have been quick to use Hohfeld’s concept of legal power, they have given little sustained thought to what he meant by ‘volitional control’ and how we might identify it within the law. The result is that certain areas of law have been mislabelled as ‘power conferring’, most notably equitable rescission. This article seeks to unpack Hohfeld’s concept of ‘volitional control’ as terminological shorthand for the coincidence of two distinct elements: (i) the power holder’s normative intention to effect the relevant legal change; and (ii) her decision to effect that change as exhibited in power-exercising conduct. By these lights, the rescinding claimant does not have a legal power to rescind.