Also known as:unenforceable contract · unenforceable agreement · voidable contracts
Written by attorneys · grounded in primary & secondary sources — see below
A contract for the breach of which neither the remedy of damages nor the remedy of specific performance is available. Such a contract is nonetheless recognized in some other way as creating a duty of performance even without ratification.
Sources & Authorities
How it applies
Common Examples
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Attorney Fee Recovery After Noncompliance
Stephen entered a contingency-fee retainer with Emily that omitted required disclosures and was never filed with the court. Stephen performed extensive work and secured a settlement that Emily accepted and retained. When Emily refused further payment, Stephen sought reasonable compensation. The retainer created no right to the contractual fee, yet Stephen could pursue restitution for the value of services rendered because the agreement was recognized as imposing a limited duty outside traditional contract remedies.
Policy-Based Employment Agreement
Employees signed individual arbitration agreements with their employer that waived collective proceedings. A later statute declared such waivers unenforceable when they conflicted with protections for concerted activity. The agreements could not be enforced through damages or specific performance. Courts nonetheless treated the agreements as creating a duty that could be recognized for limited purposes such as determining the scope of available dispute-resolution mechanisms without ratifying the prohibited terms.
Select any source to read its text and confirm it supports the definition.
Restatements
Hornbooks
Epic Systems Corp. v. Lewis584 U.S. __, __ (2018) (slip op., at 8)
Common questions
Frequently Asked
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When does an unenforceable contract still support restitution?+
Restitution remains available when a party has conferred a measurable benefit that the other party accepted and retained. Recovery is measured by the reasonable value of services or expenses and does not enforce the contract itself. Courts deny restitution only when a statute expressly bars it or when allowing recovery would frustrate the statute's purpose.
Supporting sources
Does the statute of frauds automatically eliminate all remedies for an oral agreement?+
No. The statute renders the contract unenforceable but does not bar restitution for benefits actually conferred. A party may recover the reasonable value of services performed in reliance unless the statute or its policy specifically precludes that relief.
Supporting sources
Can a party recover when the contract is unenforceable due to a guardianship adjudication?+
The contract itself is unenforceable because the ward lacked capacity. Separate restitutionary claims for value conferred may still be available under principles outside the incapacity rule, though the rule itself supplies no exception based on notice or apparent competence.
Supporting sources
What distinguishes an unenforceable contract from a void contract?+
A void contract produces no legal obligation at all. An unenforceable contract creates a duty that is recognized in limited ways even though ordinary remedies are unavailable. The distinction turns on whether the agreement is treated as never having existed or as having partial legal effect.
Supporting sources
546 U.S. 440, 163 L. Ed. 2d 1038, 126 S. Ct. 1204 (2006)Civil Procedure
…declining to apply Prima Paint ’s rule of severability, the Florida Supreme Court relied on the distinction between void and voidable contracts. “Florida public policy and contract law,” it concluded, permit “no severable, or salvageable, parts of a contract found illegal and void under Florida law.” 894 So. 2d, at 864 . Prima…