436
Thomas, J., dissenting
The only clear and explicit purpose of the OWBPA is to define "knowing and voluntary" in the context of ADEA waivers. Prior to the statute's enactment, the Courts of Appeals had disagreed about the proper standard for determining whether such waivers were knowing and voluntary. Several courts had adopted a "totality of the circumstances" test as a matter of federal waiver law, see, e. g., Cirillo v. Arco Chemical Co., 862 F. 2d 448, 451 (CA3 1988); Bormann v. AT&T Communications, Inc., 875 F. 2d 399, 403 (CA2), cert. denied, 493 U. S. 924 (1989); O'Hare v. Global Natural Resources, Inc., 898 F. 2d 1015, 1017 (CA5 1990), while others had relied solely on common-law contract principles, see Runyan v. National Cash Register Corp., 787 F. 2d 1039, 1044, n. 10, 1045 (CA6) (en banc), cert. denied, 479 U. S. 850 (1986); Lancaster v. Buerkle Buick Honda Co., 809 F. 2d 539, 541 (CA8), cert. denied, 482 U. S. 928 (1987). In enacting the OWBPA, Congress adopted neither approach, instead setting certain minimum requirements that every release of ADEA rights and claims must meet in order to be deemed knowing and voluntary. I therefore agree with the Court that the OWBPA abrogates the common-law definition of a "knowing and voluntary" waiver where ADEA claims are involved.
From this rather unremarkable proposition, however, the Court leaps to the conclusion that the OWBPA supplants the common-law doctrines of ratification and tender back. The doctrine of ratification (also known in contract law as affirmation) provides that a party, after discovering a defect in the original release, can make binding that otherwise voidable release either explicitly or by failing timely to return the consideration received. See 1 Restatement (Second) of Contracts § 7, Comments d, e (1979); 1 E. Farnsworth, Contracts §§ 4.15, 4.19 (1990).1 The tender back doctrine re-1 For the reasons noted by Justice Breyer, see ante, at 431-432, I think it cannot be doubted that releases that fail to meet the OWBPA's requirements are merely voidable, rather than void.
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