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The Distinction Between Ratification and Revivor, and Why It Matters

February 01 2017
Educational

The Distinction Between Ratification and Revivor, and Why It Matters

Contributor, William Burke

The Texas Court of Appeals in Austin once stated, “…there is confusion in Texas law concerning the distinction between the doctrines of ratification and revivor, with the terms sometimes being used interchangeably.”[1]  

Texas Law is clear that the doctrine of ratification and the doctrine of revivor are separate and distinct but historically and, thanks to the parties pleading their cases, the terms have been used interchangeably within cases leading to confusion.

What is ratification?

A Ratification occurs if a party recognizes the validity of a contract by acting or performing under the contract or by otherwise affirmatively acknowledging it.[2]

Stated another way, a person or entity agrees, either by action or writing, that they are going to be governed in some activity by a currently existing contract. Specifically, a contract that they were not originally a party to. This is also the case when there is a term or clause that was not in the original contract but through the party’s actions becomes part of the contract. For example, In Rainwater v. Mason[3],  an oil and gas lease expressly prohibited certain pooling arrangements which nevertheless were made. Production was obtained on lands which should not have been pooled with lessor's land. Lessor's predecessor, however, had assigned the royalties under the pooled lease to his creditor and this constituted a ratification. Hence a prohibited pooling arrangement was ratified by a recognition contained in a document to a third party.

The key element to a ratification is that the contract, be it an oil and gas lease or any other contract, must be effective at the time of ratification to be effective.

So what is a revivor?

Revivor occurs where a contract has terminated by reason of a limitation within the original grant itself, but is revived by 1) new consideration, 2) new words of grant, and 3) identification of the land and estate being granted.[4] Stated another way, a revivor occurs when "[t]he subsequent execution of a formal document even to a third person which expressly recognized in clear language the validity of the lifeless deed or lease has been held to give it life."[5]

The main element in the above definition is “lifeless”. For a revivor to occur a contract must first be dead. In the case of an oil and gas lease, the primary term has expired and no savings clauses apply. If then the parties express the validity of the “lifeless” lease, they may resuscitate that lease.

However, bringing a contract back from the dead is not simple. Williams and Meyers explain that, because revivor grants a new estate in land, the estate "should not be held to have been granted without a showing of intent to grant it."[6] Thus, a revivor requires there to be granting language as well as a legally sufficient description of the lands being covered. See, Bradley v. Avery, at 341.

What is the distinction?

As it relates to Oil and Gas, the biggest distinction between ratification and revivor is that revivor is limited to circumstances in which an estate in land has terminated due to a limitation in the original contract, or by operation of law. If a party wishes to again be bound under the terminated contract, there must be a new grant, consideration, and accurate description of the property within compliance of the Statute of Frauds.

In addition, revivor cannot be granted “in secret.” As held in Thornton v. Rains[7], a grantor of revivor must have knowledge, at the time of grant, that the contract has terminated, coupled with requisite intent to grant a new contract. This is not to say that ratification can be granted in secret, but as shown above the requirements for revivor are much more specific.

The confusion between ratification and revivor generally relates to the evidence for both looking very similar and, barring a written ratification or revivor, relates to the actions taken by the parties. Did they accept royalty payments? Was there a signed division order or a stipulation of interest? Was there a conveyance made subject to the oil and gas lease or contract?

Without proactively seeking the proper curative measures early on, litigation may be the only way to determine whether a contract was properly ratified or revived. Generally, the best solution is to ensure that both ratification and revivor language is used to alleviate the need for determining facts through the prolonged and expensive litigation process.

Mazurek & Holliday PC is a full-service oil gas and energy law firm focused on meeting the energy law needs of our clients throughout the United States. If you have any questions about this topic or any that affect your energy rights, please contact our offices.



[1] Bradley v. Avery, 746 S.W.2d. 341(Tex. App. – Austin 1988).

[2] Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex.App.-Austin 1999, pet. denied); Fowler v. Resolution Trust Corp., 855 S.W.2d 31, 35 (Tex.App.-El Paso 1993, no writ).

[3] Tex.Civ.App., 283 S.W.2d 435.

[4] Bradley v. Avery, 746 S.W.2d. 341(Tex. App. – Austin 1988).

[5] Hastings v. Pichinson, 370 S.W.2d 1, 4 (Tex.Civ.App.—San Antonio 1963, n. 556*556 w. h.).

[6] HOWARD R. WILLIAMS & CHARLES J. MEYERS, OIL AND GAS LAW § 340.04 (2002).

[7] 299 S.W.2d 287 (Tex. – 1957).