Void, voidable, and unenforceable contracts and the statute of frauds

Three different defects

A void agreement has no legal effect as a contract from the outset. An agreement to carry out an unlawful transaction is a typical example. Calling it a contract or signing it does not cure the defect.

A voidable contract is effective unless the party entitled to avoid it elects to do so. Fraud that induces assent, duress, or certain material mistakes can create a right to rescind. A minor's ordinary contract is generally voidable by the minor, but in California a minor's contract relating to real property or any interest in it is void. For an ordinary contract, do not equate minority with an agreement that never existed. A protected party may sometimes ratify a voidable contract after the defect is removed. The other party does not acquire the protected party's right to cancel.

An unenforceable agreement may have the elements of a contract, but a legal barrier prevents judicial enforcement. A missing required writing is the classic exam example. This differs from illegality and from a right to rescind for defective consent. Breach, by itself, does not make a contract void.

California's statute of frauds

The statute of frauds requires certain agreements, or a sufficient memorandum of them, to be in writing and signed by the party against whom enforcement is sought. Important California categories include sales of real property or an interest in it, leases longer than one year, and agreements employing a broker to buy or sell real estate for compensation. An agent's authority to make an agreement that must be written generally must also be written. Another category covers agreements that, by their terms, cannot be performed within one year of making them. That test concerns possible performance under the terms, not how long performance probably will take.

Identify the parties, property, and essential terms in the writing. The signature question is whose promise is being enforced: the party to be charged must have signed. A sufficient memorandum may satisfy the requirement without being a formal printed contract. Do not confuse a writing requirement with notarization or recording. Those serve different purposes. An oral land-sale agreement is generally unenforceable under the statute of frauds; it is not best classified as void merely because it is oral. Exceptions and equitable relief can depend on detailed facts, so obtain legal guidance before treating an oral agreement as enforceable or advising rescission.

A separate California protection

California Civil Code section 1632 requires translations for specified contracts negotiated primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean. This includes covered residential rental agreements longer than one month. When the rule applies, delivery is required before execution; a qualifying independent interpreter can change its application. Failure to comply can give the aggrieved person a right to rescind. A waiver of this section is void and unenforceable. Notice the distinction: a void waiver and a rescindable underlying agreement are different things.