A party who has received benefits by reason of a transaction that is void or voidable because of fraud, misrepresentation, mistake, duress, infancy or incompetency, and who, in an action or by way of defense or counterclaim, seeks rescission, restitution, a declaration or judgment that such transaction is void, or other relief, whether formerly denominated legal or equitable, dependent upon a determination that such transaction was void or voidable, shall not be denied relief because of a failure to tender before judgment restoration of such benefits; but the court may make a tender of restoration a condition of its judgment, and may otherwise in its judgment so adjust the equities between the parties that unjust enrichment is avoided.
§ 3004.Where restoration of benefits before judgment unnecessary
Article 30. Remedies and Pleading · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 3004 lets a party who received benefits under a transaction that is void or voidable seek rescission or a declaration that it's void without first returning those benefits, though the court can still make restoring them a condition of the judgment.
Full Text of CPLR 3004
Plain-English Summary
Courts once required a plaintiff seeking rescission to tender back whatever they'd received before filing suit — return the goods before suing to void the sale, hand back the money before challenging the deal. For someone without the means to front that return, the requirement could block a legitimate claim before it ever reached a judge.
CPLR 3004 removes that as a precondition. A party who received benefits under a transaction that is void or voidable because of fraud, misrepresentation, mistake, duress, infancy, or incompetency can seek rescission, restitution, a declaration that the transaction is void, or other relief tied to that determination, without being denied relief for not tendering restoration before judgment. The rule reaches claims, defenses, and counterclaims alike.
The court isn't stripped of control over the outcome. It can still make the tender of restoration a condition of its judgment, and it can adjust the equities between the parties however it needs to in order to avoid leaving one side unjustly enriched. The change is about timing and access to court, not about letting a party keep benefits it was never entitled to.
Frequently Asked Questions
Do I have to return money or property before suing to void a contract in New York?
No. CPLR 3004 says relief will not be denied merely because you failed to tender restoration of benefits before judgment.
What is unjust enrichment and how does CPLR 3004 prevent it?
Unjust enrichment happens when a party keeps benefits it isn't entitled to; CPLR 3004 lets the court condition its judgment on restoring those benefits and adjust the equities between the parties to prevent that result.
Can a court still require me to give back benefits I received under a voidable contract?
Yes. CPLR 3004 lets the court make tender of restoration a condition of its judgment even though it isn't required before you file suit.
Does CPLR 3004 apply to contracts voided because of duress or a minor's incapacity?
Yes. The section lists fraud, misrepresentation, mistake, duress, infancy, and incompetency as the grounds a void or voidable transaction can rest on.
What's the difference between tendering restoration before and after judgment?
Before judgment, CPLR 3004 removes tender as a requirement for bringing the claim; after judgment, the court can still require restoration as a condition of the relief it grants.
Advisory Committee Notes
This section is the same as former § 112-g, enacted upon Law Revision Commission recommendation in 1946 and amended upon recommendation of the Commission in 1952. See NY Law Rev Comm’n Rep 31–78 (1946); id. at 339–54 (1952).
Amendment History
Add, L 1962, ch 308, § 1, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: tender before rescission New Yorkvoid contract restitution requirement NYunjust enrichment rescission lawsuitrescind contract without returning benefits first