The Difference Between a Void and Voidable Contract

"There is a difference between the two words 'void' and 'voidable': void in the strict sense means that an instrument or transaction is nugatory and ineffectual so that nothing can cure it; voidable exists when an imperfection or defect can be cured by the act or confirmation of him who could take advantage of it. . . . But the distinction between the terms 'void' and 'voidable,' in their application to contracts, is often one of great practical importance; and, whenever entire technical accuracy is required, the term 'void' can only be properly applied to those contracts that are of no effect whatsoever, such as are a mere nullity, and incapable of confirmation or ratification." (Black's Law Dict. (6th ed. 1990) p. 1573, col. 2, original italics.) In People ex rel. State of Cal. v. Drinkhouse (1970) 4 Cal. App. 3d 931, 935, 84 Cal. Rptr. 773, the Court of Appeal explained that, "a contract in violation of section 1090 of the Government Code is void. As it was put in Kaufmann and Widiss, the California Conflict of Interest Laws, 36 So. Cal. L. Rev. 186, 199: 'Notwithstanding the language that such contracts "may be avoided" -- the courts have often held that a contract in which a public officer is interested is void, rather than voidable as the statute indicates.' the authors cite cases supporting their statement: People v. Deysher(1934) 2 Cal. 2d 141, 146-147, 40 P.2d 259; Berka v. Woodward(1899) 125 Cal. 119, 127, 57 P. 777; Stockton Plumbing & Supply Co. v. Wheeler(1924) 68 Cal. App. 592, 601, 229 P. 1020. To these many others could be added, among them Stigall v. City of Taft(1962) 58 Cal. 2d 565, 569, 25 Cal. Rptr. 441, 375 P.2d 289." (See also 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, 624, p. 561 "Although the statute states that such contracts 'may be avoided' ( 1092), a contract or sale in violation of section 1090 is void, not merely voidable.) The term "void contract" is defined as a contract that does not exist at law. (Black's Law Dict., supra, p. 1574, col. 2.) The expression denotes that although the parties to the transaction have purported to make a contract, none has been made in law, no legal rights have been created under the purported agreement, and either party thereto may ignore it at his or her pleasure to the extent it is executory. (Ibid.)