CHAPTER VII.

CAPACITY OF PARTIES.

94. In general.-As contract results from agreement, and agreement requires two or more assenting minds, it follows that there must be at least two parties to every contract. The parties to a contract may be individuals, or aggregations of persons, as corporations, partnerships, and the like; they may act for themselves, or represent others as their agents, attorneys, servants and the like; and they may act jointly or severally.

For the purpose of the formation of a valid contract there must be parties capable of contracting, and it is the purpose of this chapter to indicate who are thus capable, and to find out who are incapable. All persons are presumed competent to contract, and disability, where it exists, must be set up when relied upon as a defense to a contract. Some persons, by the policy of the law, and for their own benefit, are incapacitated from binding themselves by contract. The incapacity may be entire or partial, and arises from a variety of causes, as infancy, coverture, imbecility, political status, and the like.

95. Infancy.-A person under the age of majority, which was twenty-one at common law, was regarded as an infant or a minor. Statutes frequently regulate this question, and have in many cases fixed the

age of eighteen as the majority of a woman. The common law did not as a rule regard fractions of a day and, therefore, an infant comes of age at the beginning of the day before his or her twenty-first or eighteenth birthday, as the case may be.24

Voidable contracts. In general, an infant's contracts are voidable. According to the early English common law, as well as a few American decisions, contracts of infants which were manifestly to their prejudice were declared void, and not merely voidable. An example is the case of a gratuitous conveyance of land by an infant. Such a grant was void. But this rule of interest became difficult to apply. Consequently, the general law declared that an infant's contracts are merely voidable. One exception continues to exist, however: an infant cannot appoint an agent or attorney. Such an appointment and all acts and contracts made by the alleged agent are void.25 But the scope of this exception is narrowing to cases where the infant gives a warrant of attorney to confess judgment or to execute a deed.

The courts tend to leave the question to the infant himself to determine upon his coming of age whether he will abide by his agreement or not. At this time, he may ratify or repudiate the contract, as he thinks best. Necessarily, the other party to the contract may not repudiate it, but is bound if the infant desires to hold him to performance.

Valid contracts. Certain contracts are binding upon an infant, and he may not avoid them. Such

24 Bardwell v. Purrington, 107 Mass. 419.

25 Armitage v. Widoe, 36 Mich. 124.

are contracts authorized or required by law, and express and implied contracts for necessaries.

An infant's contract entered into under the authority of or by the direction of a statute or the common law, are binding upon him. Thus, where A, an infant, executes a bond to secure his appearance in a court in answer to a criminal charge, he is bound by the bond and may not avoid it because of his infancy. Similarly, because of the sovereign right and power of the state to enlist soldiers and sailors in its service, the enlistment contracts of minors are binding.26 An infant is liable for contracts for necessaries. He is bound to pay the reasonable value of such necessaries, and generally may not be held on an express contract to pay more than such a reasonable value. Consequently, the basis of the obligation to pay for necessaries is not strictly contractual, but quasi-contractual in its nature.27

An infant is liable to pay for necessaries furnished him in order that he may obtain food, clothing, shelter, and education. Otherwise, if such obligations were voidable, tradesmen would not care to extend him credit. What are necessaries varies in different cases, and depends upon circumstances. The term includes whatever is reasonably needed for the subsistence, health, comfort, and education of the infant. These in turn depend upon his age and station in life. Necessarily, some things would never be necessaries. Thus, an airship would not be considered such, whereas a watch might be under certain circum

26 In re Morrissey, 137 U. S. 157. 27 See subject, QUASI-CONTRACTS.

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stances. Generally, the articles furnished must concern the person of the infant and not his estate. The articles must be for use and not merely for ornament. Thus, liquors, tobacco, and firearms are not necessaries. Furthermore, although an article be a necessity, it may not be extravagant in quantity or quality. Ordinary school books are necessaries, but a rare edition of Shakespeare's plays would not be. Nor is an infant liable where he is sufficiently supplied with articles and then purchases a larger supply. This is true even in the case of clothing. The person who deals with an infant acts at his peril.

An infant is not answerable for money borrowed, although it is expended by him for necessaries. Nor is he liable for money borrowed to buy necessaries, unless the lender sees that it is actually expended for necessaries.28 In such event an action may be maintained against the infant.

Ratification and disaffirmance. If the contract is voidable, an infant may ratify it when he becomes of age. He is then bound and an action may be maintained against him on the contract. Ratification may be express and implied. If A, while under age, promises to sell his horse, he is bound by the agreement if, after he is of age, he expressly indicates his desire to perform. Similarly, if an infant accepts, after coming of age, the consideration of a contract made during infancy, his conduct will constitute an implied ratification.29

Disaffirmance is as necessary in some cases to pre

28 Randall v. Sweet, 1 Denio 460 (N. Y.). 29 Boyden v. Boyden, 9 Met. 519 (Mass.).

vent an implied ratification as express ratification is necessary in other cases to make the contract binding. Thus, where an infant acquires an interest in permanent property, or enters into a contract which creates continuous rights, liabilities and benefits, he may become bound unless he expressly disaffirms. An infant who has purchased land and gone into possession will be held to have ratified the transaction if he does not disaffirm it within a reasonable time after coming of age. Similarly, an infant who leases property and continues to occupy the premises after attaining full age, is liable for arrears of rent which accrued during his minority. Moreover, where an infant has conveyed land, it is held that he can only defeat his grantee's title by a direct disaffirmance of the deed made, within a reasonable time after reaching his majority.

At one time it was necessary that the disaffirming act be of as high and solemn a character as the act disaffirmed. In modern law, the act need take no particular form or expression. An unequivocal intent to repudiate the binding force and effect of the contract as disclosed by acts and declarations is sufficient.

Necessarily, the ratification or disaffirmance must be of the entire contract. He cannot ratify as to part and repudiate as to the balance of the contract. Moreover, in the event of his disaffirmance, he must return any consideration which he has received.30

96. Married women.-At common law, except as to their equitable separate estate, married women were unable to make a valid contract either to bind

30 Chandler v. Simmons, 97 Mass. 508; see subject, PERSONS.