restatement.19 This herculean project, which took over nine years to
complete,20 was led by Professor Samuel Williston of Harvard Law
School. Faced with the law’s careless and imprecise use of the terms
signifying contract invalidity, the Restatement’s drafting committee
chose the formalist approach and defined the terms void, voidable, and
unenforceable with great care.
The definitions chapter of the Restatement underwent six revisions
before it was published.21 A careful comparison of the various drafts
sheds light not only on the difficulty of the drafters’ task, but also on the
evolution of their thought process. The text defining a “void contract” is
a perfect example.
In the first two drafts, “void contract” was granted its own section.22
In the second draft it was defined as “[a] promise or set of promises
which produces no change in the legal relations of the parties.”23 While
recognizing that the phrase was “frequently used and with different
meanings,”24 the drafters made it clear that the term “void contract” was a
contradiction in terms under the Restatement’s precise, if vacuous,25
definition of a contract.26 Perhaps for this reason, the text defining a
void contract soon became an orphan in the drafting process, suffering
the indignity of losing its own section heading, and ultimately being
appended somewhat awkwardly – as a special note – to the comments of