Concept
Minors' Contracts
Incapacity to contract
Minors' Contracts
Infancy is the most mechanical of the capacity categories, and Restatement (Second) of Contracts § 14 states it in a single sentence: unless a statute provides otherwise, a natural person has capacity to incur only voidable contractual duties until the beginning of the day before the person's eighteenth birthday.1 In this setting, infant is the legal term for any person below the age of majority, so a seventeen-year-old qualifies, and infancy is the second of the exceptions to full capacity listed in § 12(2).2 The words "only voidable" carry the doctrine. A minor can make a contract that has legal effect, and the minor holds the power to undo it. That matches the definition of a voidable contract as one in which a party may avoid the legal relations the contract created by a manifestation of election, or lose that power by ratifying.3
Because the cutoff is a date on the calendar, the rule never asks whether a particular minor understood a particular deal, which is the question that dominates the mental illness and intoxication categories. A shrewd seventeen-year-old and an unworldly one stand in the same position, and an adult dealing with either can tell at a glance whether the protection applies. The reasoning behind the categorical line is that minors are treated as lacking the judgment and bargaining experience to protect themselves against adults, and a case-by-case inquiry into maturity would leave the adult guessing about the outcome of every bargain. A bright line gives up some precision, since it covers minors who are fully capable, in exchange for certainty about who holds the power to escape.
The same feature that shields minors also disables them. Only the minor can walk away, so an adult who deals with a minor carries the whole risk of the bargain, and a cautious adult may simply refuse to deal. A minor who needs housing, transportation, or work then meets closed doors, and the protection ends up costing the person it was meant to help. The law therefore pairs the power to avoid with rules that soften its cost to the adult, and those rules run through three questions. The first is who counts as a minor, which the next subsection takes up. The others are how a minor exercises or loses the power to avoid, and what a minor owes after avoiding, each treated in its own subsection after that.
Age of Majority
Section 14 turns the abstract category of infancy into a calendar calculation: unless a statute provides otherwise, a natural person has capacity to incur only voidable contractual duties until the beginning of the day before the person's eighteenth birthday.4 Two numbers sit inside that sentence, the age of eighteen and the day-before convention, and the opening clause makes both of them subject to legislative change. At common law a person remained an infant until twenty-one, and legislation enacted mostly in the 1970s set the age of majority at eighteen in most jurisdictions.5 The change was not uniform: as of 2022, forty-six states had lowered the age to eighteen by statute, three had chosen nineteen, and Mississippi kept twenty-one.6 The first step in an infancy problem is therefore to find the age line that the governing jurisdiction's statute draws, because eighteen is the Restatement's default rule and a statute may move it. Since infancy is the condition that § 12(2)(b) lists among the exceptions to full capacity, this age line decides whether that exception applies at all.7
The second number, the day before the birthday, rests on the maxim that the law often disregards fractions of a day, and under it infancy is commonly held to end at the very first moment of the day preceding the eighteenth birthday.8 A person born on September 14, 2013, leaves infancy after the stroke of midnight on the morning of September 13, 2031. A contract signed at any hour on September 13 of that year comes from a person with full capacity, who cannot avoid it on grounds of age. The same person's contract signed on September 12 still falls within infancy and is voidable by the minor. The two signings differ by a single day, and that day is the only fact that moves the answer. The convention has an administrative payoff as well: no one has to prove the hour of birth, so a counterparty who knows a birth date can work out the answer from the calendar alone.
The opening clause of § 14 also works in the other direction, because a statute can validate particular contracts made by a person who is below the age line, and a validated contract takes away the minor's power to avoid it. Massachusetts, for example, has laws allowing minors to contract for education financing, life insurance, motor vehicle liability insurance, drug dependency treatment, and medical or dental care.9 Statutes in some states likewise provide for enforcing certain contracts of children employed in the entertainment industry, and those provisions typically require court approval.10 The pattern answers the cost of voidability described in the previous section. An adult who cannot count on a minor's promise may decline to deal at all, and for insurance, medical care, and schooling that refusal could leave the minor without something needed. A legislature removes the hesitation by making the listed contract binding, while the general rule of voidability continues to govern every contract the statutes leave out.
A separate question is whether a person below the age line can be treated as an adult before reaching it. The status that raises the question is emancipation, the point at which a minor is freed from parental control, and in most states the grounds are set by statute and typically include permanent abandonment of the parents' home, military service, or marriage.11 The argument for carrying emancipation into contract law is intuitive, since a minor who lives independently and answers to no parent looks like an adult, and it is fair to ask why such a person should keep a power to escape bargains. The rule applied under the common-law approach is that emancipation does not enlarge a minor's capacity to contract.12 The age line in § 14 continues to govern, whatever the minor's living arrangements or marital status.
In Mitchell v. Mitchell a married 17-year-old was injured as a passenger in a car driven by her husband, and twelve days later she signed a release settling her bodily injury claim for $2,500.13 The trial court upheld the release on the theory that her marriage had emancipated her and removed the disabilities of a minor, including the incapacity to contract.14 The Kentucky Court of Appeals reversed. It started from the Kentucky statute defining a minor as anyone under eighteen, which supplied the age line, and it accepted that marriage emancipates a minor.15 It then held that emancipation does not make the minor sui juris, meaning legally independent and able to manage her own affairs, and it adopted the general rule that parental emancipation "may free the infant from parental control" but "does not remove all of the disabilities of infancy."16 The release was therefore voidable at the signer's election, and the case was remanded for an order voiding the settlement.
The court gave reasons that explain why the age line holds against an appeal to independence. The first concerns what the line is for: a contract frequently involves negotiation and thought beyond the maturity of most people under eighteen, so the minor is presumed insufficiently mature to bargain with adults, and that presumption does not turn on the minor's family situation.17 The second reason addresses the proxy argument directly. Emancipation shows who controls the minor, and it says little about how well the minor bargains; the court observed that a minor's marriage may itself indicate a lack of wisdom and maturity, so a rule treating married minors as better bargainers would rest on an unreliable signal.18 The court conceded that the rule may seem antiquated, since a minor can drive a car yet is not bound by the contract to buy it, and it noted that the legislature has provided for appointing a conservator to protect a married minor's finances.19 Failure to appoint one does not void the contract, and the minor remains free to avoid it. Authority is not unanimous, however: a line of cases generally treats emancipated minors as adults for contracting purposes, with Mitchell cited as the contrary decision.20
Two errors recur on exam stems. One is counting from the birthday itself, which lands a day late, so the date calculation should start from the day before the eighteenth birthday. The other is reading marriage, military service, or financial independence as proof of adult capacity, when the age line and any applicable statute decide the question. Where a stem supplies a statute that validates a particular kind of contract, such as medical care or insurance, the minor cannot avoid that contract even though the age line has not been crossed.
Disaffirmance and Ratification
Section 7 of the Restatement (Second) of Contracts defines a voidable contract as one in which a party may, by a manifestation of election, avoid the legal relations the contract created, or may, by ratification, extinguish that power of avoidance.22 When the party holding that power is a minor, the two powers have specific names. The minor's exercise of the power to avoid is called disaffirmance, and the effective surrender of that power is called ratification.23 Because the option can end in either direction, three questions arise: when it may be exercised, what counts as exercising it, and what conduct closes it. The answers run in time order, beginning with minority, continuing through a reasonable period after majority, and ending when the option is gone.
A minor may disaffirm at any time before reaching the age of majority, or within a reasonable time afterward.24 The first half of that window means the minor need not wait for a birthday to escape a bad deal, and in most transactions a disaffirmance made at seventeen takes effect at seventeen. Conveyances of real property draw disagreement. The weight of older authority permits a minor to disaffirm a deed only after majority, while sound modern authority permits disaffirmance during minority, because the older rule keeps land unmarketable for an excessive period.25 The second half of the window exists because a minor cannot ratify before reaching majority; any purported ratification during minority suffers the same voidability as the contract itself.26 A promise at seventeen to stand by the deal is simply another promise by a person who can incur only voidable duties, so it adds nothing to the original. The former minor therefore needs a period as an adult to decide whether to keep the bargain, and nothing done earlier, including full performance, waives the right to disaffirm once majority arrives.27
The disaffirmance itself requires no special language. Any manifestation of unwillingness to be bound by the transaction suffices, it may be oral, and it often appears for the first time as a plea of infancy raised as a defense or as the filing of an action to set the transaction aside.28 The manifestation must still disclose an unequivocal intent to repudiate, so words that leave open whether the minor means to go forward do not qualify.29 The loose form requirement follows from what the doctrine protects. A rule demanding formal notice or particular phrasing would let an adult counterparty defeat the protection on a technicality, and the minor is the person least likely to know the technique. Two further points complete the mechanics. A disaffirmance is irrevocable once made.30 And a minor who misrepresented age to the other party keeps the power to disaffirm, although the misrepresentation may affect what the minor owes afterward, a question the next subsection takes up.31
Once the minor chooses to disaffirm, the disaffirmance must reach the entire contract. The minor cannot enforce the favorable portions while avoiding the burdensome ones.32 Modern internet cases show where the rule bites. In A.V. v. iParadigms, L.L.C., students who were minors registered for a plagiarism-checking website through a clickwrap agreement, challenged its archiving term, and sought to disaffirm, but the court refused because they did not abandon the contract entirely and kept the benefit of the website's services.33 In E.K.D. v. Facebook, Inc. the minor kept using the networking site while trying to avoid its forum-selection clause, and the court held that a minor cannot disaffirm only the part of a contract that does not suit while continuing to receive performance under it.34 The rule has a boundary, drawn in T.K. v. Adobe Systems, Inc., where a minor disaffirmed the renewal of an Adobe Creative Cloud subscription after a year of use, and the court allowed it because the use occurred before disaffirmance and the minor did not keep using the service afterward.35 What separates the outcomes is the timing of the benefit. The bar on partial disaffirmance reaches continuing benefits that the minor seeks to retain, and it leaves untouched benefits already received during minority before the disaffirmance.
The reason for the all-or-nothing requirement lies in what the power is for. The law gives the minor an option to undo a bargain, and it does not give the minor authority to rewrite that bargain by keeping the good terms and discarding the bad. Disaffirming the whole contract ends the relationship for both sides, whereas a partial disaffirmance would turn a protective device into a one-sided deal the adult never agreed to make.
After majority, ratification enters the picture, and it can happen in three ways: failure to make a timely disaffirmance, express ratification, and conduct manifesting an intent to ratify.36 The first route is the default one. A former minor who does not disaffirm within a reasonable time after reaching majority has ratified by default, and the contract is thereafter binding.37 What counts as a reasonable time is usually a question of fact that depends on whether either or both sides have performed, the nature of the transaction, and the extent to which the other party has been prejudiced by the delay.38 Tying the answer to those facts balances two interests. The former minor deserves a real chance to judge the deal as an adult, yet the adult counterparty cannot be left in limbo indefinitely, and the longer silence continues after performance or a change of position, the more unfair a late disaffirmance becomes. Many cases express this as a distinction between executed and executory contracts, holding that an executed contract is ratified automatically if not disaffirmed within a reasonable time while an executory contract binds only if ratified by words or conduct after majority.39 That distinction is a carryover from the older view that an infant's executory contract is void, and courts do not apply it when the former minor's delay would work injustice on the other party.40
The other two routes rest on the former minor's own choice after majority. Ratification may be express, as when the former minor says as an adult that the contract will be honored, and it may be implied from conduct that manifests an intent to be bound. No fresh consideration is needed for either, because ratification does not create the contract; it gives up the power to avoid a contract that already exists.41
Stems that have a minor turn eighteen and then perform diligently for a short time before asking out test exactly this line. The rule is that a minor may avoid the contract for a reasonable time after reaching majority and that failure to disaffirm within that time makes the contract binding, so the analysis turns on whether the post-birthday conduct amounts to ratification or the request to withdraw came soon enough.42 A problem of this kind is best run by laying the dates in order and testing each act against them.
The structure of these rules serves one purpose: the minor's protection operates as a shield. Disaffirmance lets the minor escape an improvident bargain, the period after majority gives the former minor a fair chance to judge the deal as an adult, and the ratification rules let adult counterparties eventually learn where they stand. The cost falls on merchants who deal with minors and may have to unwind a bargain they believed complete, and the law accepts that cost because society's interest in protecting children outweighs the interests of those who contract with them.43 The shield gives no license to keep the benefits of a continuing arrangement while refusing its burdens, which is the reason the whole-contract requirement exists.
Restitution and Necessaries
Under Restatement (Second) of Contracts § 14, a minor has capacity to incur only voidable contractual duties.45 A voidable contract is one in which the minor holds the power, by a manifestation of election, to avoid the legal relations the contract created.46 The preceding subsection explained how a minor exercises or loses that power. This one takes up the accounting that follows disaffirmance. When a contract has been partly or fully performed, who gets back what, and does the minor owe the other side anything for what was used up or destroyed? The answer has three parts. A general rule gives the minor generous protection, a necessaries exception withdraws part of that protection when the minor received something needed to live, and a minor's lie about age leaves courts divided over how much protection survives.
Disaffirmance unwinds the exchange in both directions. When a minor disaffirms, title to any property the minor received returns to the party from whom it came, and title to any property the minor transferred returns to the minor.47 The minor then has no obligation under the contract, and that remains true even if the property the minor received has been consumed or destroyed.48 In practical terms, the minor gives back whatever remains of what was received and recovers what the minor transferred, without making up the value of what was squandered or wrecked. Full performance changes nothing, because the right to disaffirm extends to fully executed contracts.49
The reason the loss falls on the adult follows from the purpose of the whole doctrine. A minor occupies a favored position, protected against improvident commitments while keeping the right to enforce a bargain that turns out well.50 Improvident commitments usually produce waste, because the thing bought is used up or broken before the minor reconsiders. If a minor could disaffirm only by restoring the full value of what had been wasted, the minor would pay for the very improvidence the doctrine exists to guard against, and the power to avoid would be worthless at the moment it was needed most. The adult who chose to deal with a person whose promises are voidable bears the risk of that choice, which is the cost the rule imposes on those who contract with minors.
The same logic reaches benefits that cannot be handed back at all. As a general rule, a minor is not required to restore the value of services used before disaffirmance.51 In T.K. v. Adobe Systems, Inc., the minor disaffirmed the renewal of a software subscription after receiving its benefit for a year, and the court allowed it because the use occurred before disaffirmance and did not continue afterward.52 For goods, the counterpart of used-up services is depreciation. Mere depreciation of a motorcycle does not prevent the minor from disaffirming, although some jurisdictions would require the minor to compensate the seller for use or benefit received.53 Jurisdictions therefore differ, and when an exam stem does not say which approach governs, the sound answer states the traditional rule and flags the compensation view.
Where a jurisdiction does impose a payment obligation, the label attached to it matters. Some courts hold a minor liable in restitution, and not in contract, for the fair value of property that cannot be returned and for services or other benefits received.54 Contract liability is measured by what the minor promised to pay, while restitution is measured by the value of what the minor actually received. A seller who extracted a high price from a minor can therefore recover at most the value of the benefit, and the minor never owes the promised price itself. In every jurisdiction the minor's power to disaffirm stays intact, and the jurisdictions differ only over whether the adult may recover value afterward.
One boundary lies outside the two contracting parties. If the property has been resold to a good faith purchaser for value, that purchaser takes good title, and the minor's disaffirmance cannot defeat it.55 This is one of the few situations in which a transferor with voidable title can pass better title than the transferor held, and for goods the Uniform Commercial Code reaches the same result.56 The purchaser paid value with no way to know about the earlier transaction, so the minor's protection runs against the adult who dealt with the minor and stops short of an innocent stranger to that deal.
The general rule yields to an exception for necessaries. A minor may avoid a contract for necessaries as for any other, but the minor is then liable in restitution for the reasonable value of the benefits received, and that liability does not rest on the contract.58 Necessaries are the goods and services the minor actually needs.59 Food, shelter, clothing, and medical care are the usual examples.60 The exception has two halves, and each has its own reason. Essentials are the one category in which the minor's protection could hurt the minor directly, because a provider who knows the minor can avoid and pay nothing will decline to supply food, housing, or medical care, and the minor could be left without them. Allowing recovery of value gives providers the assurance they need. Liability stops at reasonable value, and does not extend to the contract price, because protection against improvident commitments continues: the provider is paid for what the minor received and cannot enforce a premium price or onerous terms.
Courts are not entirely consistent about what counts as a necessary, but they tend to include the necessities of life and arguably include transportation that supports the minor's ability to obtain them.61 The reasoning appears in an illustration involving Adam, a minor whose parents have died and who supports himself, and who buys a motorcycle to get to work and to buy food. Because the motorcycle supports his access to the necessities of life, it arguably qualifies as a necessary, so he may owe restitution for its reasonable value even if he disaffirms, and mere depreciation of the motorcycle would not stop him from disaffirming.62
Necessaries include services as well as goods. In Zelnick v. Adams the Supreme Court of Virginia observed that legal services may be necessaries, and that contracts for legal services to prosecute a personal injury action, or to protect a minor's liberty, security, or reputation, are generally treated that way.63 Whether a lawyer's services qualify depends on whether a need for them actually exists.64 West Virginia's highest court reasoned in a paternity action that if minors did not have to pay for legal representation, they could not protect their interests.65 The inquiry therefore turns on the need in the minor's circumstances and does not depend on a fixed list of items.
At the other pole, a college student under eighteen who books a luxury vacation online with a credit card can avoid the contract. A luxurious vacation cannot qualify as a necessary for a college student, the student's brilliance and advanced maturity make no difference, and even a statute that lets minors contract for a credit card does not clearly extend to purchases made with it.66 Nor must the minor show that the bargain was unfair, since no such requirement applies to a minor's disaffirmance, although a fair-terms limit does appear in some mental incapacity cases.67 That contrast returns in the later treatment of mental illness.
Misrepresentation of age tests how far all of this protection reaches. Under the majority view, a minor who willfully misrepresents age may still exercise the power to avoid the contract.69 The misrepresentation is not without effect, though. It may influence the court's decision about the obligation to make restitution, and some jurisdictions treat it as a tort committed by the minor.70 Courts sitting in equity often require a minor who disaffirms after such a misrepresentation to restore the other party to the position held before the deal, which asks for more than the ordinary rule of returning what remains.71 The other party also gains a defense of its own, because a minor's misrepresentation of age or another material fact permits the other party to avoid the contract for fraud.72 That route rests on the fraud and does not depend on the minor's incapacity, so it does not conflict with the rule that only the protected person may avoid for incapacity.
The tort question divides the courts. A tort action cannot be brought against a minor if the tort is in essence a breach of the contract, because allowing it would enforce the contract in circumvention of the protective rule.73 A minor remains liable for conversion of goods, since that wrong is treated as independent of the contract.74 Deceit about age falls on a disputed line between those two. Some courts say a fraud action ultimately rests on the contract and bar it, and others say the tort is sufficiently independent that granting relief does not enforce the contract indirectly.75
Each position protects something real. If a lie about age stripped the minor of the power to avoid, sellers could collect an age statement as routine paperwork, and the protection would disappear for any minor who could be asked to sign. If the lie carried no consequence at all, a minor would profit from deceit. The dispute is over how far the policy of protecting minors extends to a fraudulent one, and a case can be made for either view.76