Legal Definitions - derogatory clause

A derogatory clause refers to a provision within a legal document that attempts to prevent its own repeal, amendment, or the validity of subsequent conflicting documents. It has two primary meanings:

1. In the context of statutes or contracts: A derogatory clause is a provision that declares the document in which it appears, or a specific part of it, cannot be changed or canceled. Such clauses are generally considered ineffective because a governing body or contracting party cannot permanently bind itself or future entities from exercising their power to amend or repeal. The authority that created a rule or agreement typically retains the power to modify or dissolve it.

   • Example 1 (Statutory): Imagine a newly formed nation's constitution includes a clause stating, "Article V, outlining the fundamental rights of citizens, shall never be amended or repealed by any future legislative body."

     Explanation: This is a derogatory clause because it attempts to make a specific part of the constitution immune to future changes. However, despite this clause, a future legislature, following the established constitutional amendment procedures, would generally still have the legal authority to amend or repeal Article V. The clause's attempt to permanently restrict future legislative power would likely be deemed ineffective.

   • Example 2 (Contractual): Two companies sign a long-term partnership agreement that includes a clause stating, "This entire agreement, including this provision, is irrevocable and cannot be modified or terminated by either party for any reason whatsoever."

     Explanation: This clause acts as a derogatory clause by attempting to prevent any future changes or termination of the contract, even if both parties later agree to modify it or if unforeseen circumstances arise. While contracts can be made difficult to alter, a court would typically not uphold a clause that completely prevents modification or termination if both parties mutually agree to it, or if legal grounds for termination (like a material breach) exist. The clause tries to bind future actions absolutely, which is often legally ineffective.

2. In the context of wills (testamentary): A derogatory clause is a secret provision inserted into a will by the testator (the person making the will). This clause stipulates that any subsequent will made by the testator will only be considered valid if it contains that precise secret clause or condition.

   • Example 1 (Will): An elderly individual, concerned about potential undue influence from a new acquaintance, includes a hidden sentence in their will: "My true and final wishes are always marked by the phrase 'the silver locket holds my secret'." The will then states that any later will not containing this exact phrase is to be considered invalid.

     Explanation: This is a derogatory clause. If the individual later creates a new will under pressure or coercion from the acquaintance, and that new will omits the specific phrase "the silver locket holds my secret," the original will's derogatory clause would be used to challenge the validity of the new will, arguing it was not made with the testator's true, uninfluenced intent.

   • Example 2 (Will): A testator, wanting to ensure their estate is distributed according to their genuine wishes, includes a specific, unique phrase in their will: "My legacy is forever tied to the 'whispering pines of my childhood home'." The will further declares that any subsequent testamentary document that does not explicitly include this phrase is to be disregarded.

     Explanation: This clause functions as a derogatory clause. Its purpose is to act as a safeguard. If the testator were to be coerced into signing a different will later, perhaps by a manipulative relative, the absence of the "whispering pines" phrase in that new document would trigger the derogatory clause, potentially invalidating the coerced will and upholding the original, uninfluenced one.