You've got a signed contract, a client who stopped paying, and a sinking feeling that your contract might not actually hold up in court… so what exactly is an unenforceable contract, and how do you know if yours is one?

The short answer is that an unenforceable contract is an agreement a court won't enforce, usually because it's missing a key element, uses vague or unfair terms, wasn't properly accepted, or conflicts with the law

The good news is that most of the reasons contracts fall apart are completely avoidable and that’s exactly what this blog post is for!

Keep reading to learn what makes a contract unenforceable, how it differs from a void or voidable contract, the 8 most common mistakes we see business owners make, and a simple checklist to put your contracts on stronger footing.

What Is an Unenforceable Contract?

An unenforceable contract is an agreement that exists on paper but it’s one that a court won't require the other party to follow. The deal may look complete, but a legal defect, a missing element, or a problem with how it was formed or documented keeps it from holding up.

Here's how that plays out in real life:

Let’s say you're a brand designer. You email a proposal to a new client, hop on a call, and they say, "Sounds great, let's do it." 

So you start the work and 3 weeks later, they decide they only owe you half your fee because "the scope was never clear." You had a deal, but without written terms for price, deliverables, or timeline, proving what you both agreed to becomes an uphill battle.

This is why as a lawyer, I always say to get things in WRITING! But beyond that it’s important that whatever you get in writing is enforceable and we’ll get to that in just a minute. 

Void vs. Voidable vs. Unenforceable Contracts

When talking about unenforceable contracts, it’s important to make a distinction between void and voidable contracts as well because a lot of people think they mean the same things and while they’re similar, each one has its own specificities. 

Here’s the difference:

Void contract – a void contract was never a valid contract in the first place. This usually happens when the agreement has an illegal purpose or is missing an essential element. A void contract generally can't be fixed, meaning you'd need to start over with a new, lawful agreement.

Voidable contract – a voidable contract is valid, but one party can choose to cancel it. Common causes include fraud, pressure or duress, or a party who lacked the capacity to agree (like a minor). The affected party can sometimes choose to keep the contract in place instead.

Unenforceable contract – an unenforceable contract exists, but a court won't enforce it (or part of it). This often comes down to a missing required writing, vague terms, unreasonable penalties, or a missed deadline to file a claim. Unlike a void contract, an unenforceable contract can sometimes be fixed by documenting it properly or revising the problem terms.

Overall, a contract with a defect is a contract you can't count on, which defeats the entire purpose of having one in the first place! So, how can you make sure that your contract is enforceable from the start?

What Makes a Contract Enforceable?

Most enforceable contracts share the same basic building blocks: 

• Offer – one party proposes specific terms (for example, "I'll design your logo and brand kit for $3,000").
• Acceptance – the other party clearly agrees to those terms.
• Consideration – each side gives something of value, like payment, services, or a product.
• Capacity – both parties are legally able to agree. That generally means adults of sound mind and, for businesses, someone with authority to sign.
• Lawful Purpose – the agreement doesn't involve anything illegal.
• Clear Terms – The key details are specific enough that a court can tell what each side actually promised.

Most contract enforceability problems happen when one of these pieces is missing or weak, so let’s look at where business owners most often trip up.

8 Common Mistakes That Can Make a Contract Unenforceable

As a lawyer, I often see the same mistakes in contracts all the time that unfortunately make them unenforceable. Here’s what each mistake looks like and how to fix it:

Vague or Missing Key Terms

A contract that promises "social media support" or "website help" without spelling out deliverables, price, or timeline leaves too much open to interpretation. If a court can't tell what each side promised, it may not be able to enforce the agreement, or it may fill in the gaps in a way you never intended.

The Fix: Spell out what's included, what's not included, how many revisions the client gets, your timeline, how and when you'll communicate, and what you charge for out-of-scope work. Any extra work should be approved in writing before you start it!

No Clear Proof the Client Agreed

Verbal deals, unsigned PDFs, and terms buried in a footer link nobody clicked all share the same problem – even if you had a deal, it's hard to prove what the terms were or that the client accepted them. Some types of agreements also must be in writing to be enforceable under state laws known as the "statute of frauds."

The Fix: A signed contract is typically the strongest foundation! E-signatures and clickwrap acceptance (a checkbox the client must actively click at checkout or booking) can also carry legal weight, depending on the facts. What matters most is that you can show the client saw the terms and agreed to them.

Curious if a contract is valid if both parties don’t sign? We cover that HERE! 

Changing the Deal Without Documenting It

Client relationships evolve, which means that scope can grow, deadlines can move, and prices might change. The problem is that a lot of these changes might be discussed over Slack, text, or a quick call.

But without a written record, it becomes your word against theirs about which version of the deal applies.

The Fix: Document changes in writing and have both parties sign or accept them. And no, this doesn’t always mean that you need a brand new contract to implement changes!

Oftentimes, a contract modification or contract amendment can work just fine and you can learn more about both of those HERE!

If you find that you do need to implement a contract amendment, TBL of course has a template to help you out with that!

Fees That Look Like Penalties

A $2,000 fee for canceling a $500 session might feel like strong protection, but it can backfire. Courts are often reluctant to enforce fees that look designed to punish the client rather than cover a real loss to your business.

The Fix: Keep cancellation fees, late fees, and kill fees reasonable and proportional. Spell out the notice window, how the client should cancel, the fee, how no-shows are handled, and any exceptions. Then enforce your policy consistently, and if you make an exception, document it as a one-time accommodation.

Not sure how to create a legally sound cancellation policy? We’ve got you covered!

Overly Broad Non-Competes and Restrictions

A clause that bars a contractor from working "in any industry, anywhere, forever" is a red flag. Restrictions that go further than needed to protect a legitimate business interest are frequently struck down or narrowed, and some states heavily limit non-competes altogether.

The Fix: Keep restrictions narrow in time, geography, and scope. In many cases, a well-drafted confidentiality or non-solicitation clause protects what you actually care about. Because the rules vary significantly by state, this is a clause worth having reviewed.

If you want to dig further into NDAs to better understand if your business really needs one, CLICK HERE!

One-Sided or Hidden Terms

Fine print that strips the client of every possible remedy, or terms the client never had a chance to see before paying, can come back to bite you. Courts may refuse to enforce terms that are extremely unfair or that a client had no reasonable opportunity to review.

The Fix: Make your key terms visible before the client signs or pays, and keep them balanced. If you sell products or digital goods, present your terms at checkout (not just in a footer link) and require the buyer to accept them.

The Wrong Person Signed

If the person who signed didn't have the legal ability or authority to agree, the contract may be open to challenge. Common examples include an employee signing on behalf of a company without authority, a minor signing, or a business owner signing in their personal name instead of their business name.

The Fix: Confirm who's signing and their role, and list your business entity (for example, "Bright Studio LLC") as the contracting party. This also helps keep a clear line between you personally and your business!

For more on how to properly sign contracts, CLICK HERE!

Terms That Conflict With the Law

And lastly, no matter how clearly it's written, a contract term that violates the law generally won't hold up. That includes clauses asking consumers to give up rights the law doesn't allow them to waive, and any agreement built around an illegal purpose, which can undo the entire contract.

The Fix: Start with attorney-drafted terms, and have consumer-facing terms reviewed for your industry and the places you do business.

Does One Bad Clause Make the Whole Contract Unenforceable?

Now, there’s of course a lot of things that go into writing a contract and a single contract often includes a lotttt of different clauses. With that, many business owners wonder if one bad clause could make the whole contract unenforceable… and the answer is not always. 

In many cases, a court can strike or limit a single problem clause and enforce the rest of the contract, especially if the contract includes a severability clause.

A severability clause is a short provision that tells a court, "If one part of this agreement doesn't hold up, keep the rest." It's one of those behind-the-scenes clauses that most people skim past, but it can make a real difference if a dispute ever comes up.

Here's an example of what a severability clause can look like inside a contract:

“Severability. If any part of this Agreement is found invalid or unenforceable, the remaining provisions will stay in full force and effect, and the invalid provision will be modified only as much as necessary to make it enforceable.”

One important caveat with this, however, is that if the problem clause goes to the heart of the deal (like the price or the scope of work), a severability clause may not be enough to save the agreement, so that's why clear core terms from the very beginning matter so much!

A Checklist For How to Make Your Contract More Enforceable

As mentioned earlier, the good news about unenforceable contracts is that most of the things that make them unenforceable are avoidable and fixable!

So if you’re reading this and realizing that your contract might not actually hold up in court, don’t freak out. Instead, before you send it to another client, make sure that you go through this checklist to ensure that it IS enforceable so you don’t run into any issues down the road. 

Enforceable Contract Checklist 

✔️ Put the agreement in writing before work starts or payment is taken

✔️ Name the correct parties, including your business entity

✔️ Define scope, deliverables, price, payment terms, and timeline

✔️ Keep fees, cancellation terms, and restrictions reasonable

✔️ Get a signature, e-signature, or active checkbox acceptance

✔️ Save a copy of the signed or accepted version

✔️ Document every change in writing and get it signed or accepted

✔️ Include a severability clause

✔️ Keep your contract consistent with your Website Terms and Conditions and Privacy Policy

✔️ Revisit your contract as your services and business change

In addition to those things, it’s also important to check where your contract lives in your workflow, too.

For example, if you're a service provider, send your contract with your proposal or before your first invoice, and don't start work until it's signed. Or if you sell products or digital goods, build acceptance into checkout with a required checkbox that links to your Terms of Purchase.

FAQs About Unenforceable Contracts

What is an unenforceable contract in simple terms?

An unenforceable contract is an agreement that a court won't hold the parties to, even though both sides agreed to it. It usually happens because the contract is missing a key element, has unclear or unfair terms, or wasn't properly accepted.

Can a verbal agreement be enforceable?

Sometimes yes, but verbal agreements are much harder to prove, and some types of agreements must be in writing to be enforceable. A written contract puts you on much stronger footing!

Is an email agreement enforceable?

It can be, depending on the facts, such as whether the email clearly states the terms and shows that both parties agreed. However, a signed contract or clear clickwrap acceptance is typically stronger evidence.

What's the difference between a void and an unenforceable contract?

A void contract was never valid in the first place, often because it has an illegal purpose. An unenforceable contract exists, but a court won't enforce it, usually because of a defect in how it was written, formed, or documented.

Can an unenforceable contract become enforceable?

Sometimes! Depending on the problem, you may be able to fix it by putting the agreement in writing, getting clear acceptance, or revising the problem terms in a signed amendment.

Does using a contract template make my contract enforceable?

A well-drafted, attorney-written template gives you a strong starting point, but no template guarantees enforceability on its own. You still need to fill it in accurately, get proper acceptance, keep your terms reasonable, and follow the contract consistently.

Enforceable Contract Templates For Online Business Owners

Overall, an enforceable contract doesn't need to be complicated – it just needs to be clear, reasonable, and properly accepted. And that's exactly what our attorney-drafted templates here at The Boutique Lawyer are built to help you do!

If you’re not sure which contracts your business needs, we make it pretty easy for you to figure out. You can CLICK HERE to shop our contract templates by industry to ensure that you’re getting the templates that are best fit for you! 

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ABOUT THE AUTHOR, AMBER GILORMO – ATTORNEY AND FOUNDER OF THE BOUTIQUE LAWYER

Amber Gilormo is the cool lawyer behind The Boutique Lawyer – a one-stop contract template shop for creative entrepreneurs, online business owners, coaches, and service providers.

From client agreements to digital product terms and everything in between, our lawyer-drafted templates take the guesswork out of staying legally protected online (no legal jargon required).

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