Superpowered Minors, Part Two

In the previous installment of this series we discussed minor superhero and supervillain criminal liability.  Today we’re going to talk about the contract liability of minors.  Unlike crimes (and, as we shall see, torts), minors are often able to escape contract liability.

I. The General Rule

The common law rule is that “minors have the capacity to contract, at least when of sufficient age to understand what they are doing, but in general, they have the right to repudiate their contracts.”  42 Am. Jur. 2d Infants § 39; See, e.g., Hoblyn v. Johnson, 55 P.3d 1219, 1230 (Sup. Ct. Wy. 2002).  In other words, a minor can enter a contract (and sue for breach), but in general he or she can also get out of the contract if he or she wants to.

Now you might think that this is a bit unfair.  For example, what if an upstart supervillain contracts to buy a freeze ray, receives it, stiffs the seller, then repudiates the contract? The answer is that the supervillain has to give the freeze ray back if he or she wants to avoid the contract.  See, e.g., Nelson v. Browning, 391 S.W.2d 873, 877 (Sup. Ct. Mo. 1965)  The law may be stupid sometimes, but it’s not that stupid.

There is, however, a twist.  What if the freeze ray was smashed in an altercation with a superhero?  In that case the seller is out of luck.  “If during infancy he has wasted or squandered the consideration, or has otherwise made away with it so that he is unable to restore it, he may nevertheless repudiate the contract without making a tender.”  Id.

So why not require the kid to pony up the cash equivalent instead of getting away free and clear?  Because “the privilege of repudiating a contract is accorded an infant because of the indiscretion incident to his immaturity, and if he were required to restore the equivalent where he has wasted or squandered the consideration received, the privilege would be of no avail when most needed.”  Id. at 877-78.  In other words, it’s all well and good to demand one’s freeze ray back because in a sense that doesn’t cost the kid anything, but giving back the cash equivalent would essentially be an enforcement of the contract since it would come out of the kid’s own pocket, which kinda defeats the point of the rule.

However, some courts have taken the view that merely selling or exchanging the received goods for something else doesn’t count.  In other words, if our young supervillain exchanges the freeze ray for a heat ray of equal or lesser value, then in some states he might still be liable to return the heat ray (assuming he’s still got it and it hasn’t been smashed up, of course).  See, e.g., Whitman v. Allen, 121 A. 160 (Sup. Jud. Ct. Me. 1923).  And some courts depart from the general rule entirely and take the view that the minor is in fact liable for the value of the consideration received, even if the minor has to pay the cash equivalent out of pocket.  See, e.g., Porter v. Wilson, 209 A.2d 730 (Sup. Ct. N.H. 1965).

The upshot of all of this is that entering into contracts with minors isn’t terribly wise most of the time. This why most contracts involving minors require the signature of a parent or legal guardian.

II. Some Exceptions

The major exception, extending back to the common law, is that a minor can be bound for a contract for “necessaries.”  Necessaries are not precisely defined in most jurisdictions, but as a rule of thumb they are things like food and shelter that the minor actually needs and actually uses.  For example, a hotel room is not a necessary when a minor has access to a perfectly good home, but if the minor would otherwise be stranded outside and does indeed use the hotel room, then that’s a necessary.  As you can imagine, this would mostly apply to the practical requirements of a young superhero or supervillain living on his or her own; the rule wouldn’t apply to something like a freeze ray, since nobody really needs one.

Note, however, that the liability for necessaries is generally limited to the reasonable value of the good or service, not the contracted price. See, e.g., Williams v. Baptist Health Systems, Inc., 857 So.2d 149 (Ct. Civ. App. Ala. 2003).  This is because the liability for necessaries is not based on contract but rather quasi-contract, the distinction between which is beyond the scope of this post.

Of course, the common law can be modified by statute, and in many states it has been.  For example, in California a minor cannot make a contract relating to real property (i.e. real estate) or make a contract relating to personal property not under his or her immediate possession or control.  Cal. Civ. Code § 6701 (2009).

Finally, things get especially complicated when you consider cases where a person makes a contract while a minor but then seeks to repudiate it after turning 18.

III. Conclusion

The rule that minors may be liable for their torts, responsible for their crimes, and yet often not liable for their contracts may seem a bit unfair.  The practical conclusion is for adults to be wary of contracting with minors, and indeed this is why many legal actions require a parent or legal guardian to be involved (NB in such cases it is the adult who is bound, not the minor).  But in the right jurisdiction, a wily young supervillain–especially one able to project the appearance of adulthood–might be able to abuse this defense for fun and profit.

11 responses to “Superpowered Minors, Part Two

  1. There is, of course, the unspoken issue that you generally don’t buy such things as freeze rays from people who bring you to court if you fail to pay…

  2. Richard Winters

    Okay, here’s a complication. What if the super genius kid isn’t buying the freeze ray. What if, instead, he bought the Wonderflonium required to make the freeze ray. He then uses the Wonderflonium in an irrevocable manner to create the freeze ray, but then wants to get out of the contract.

    Is her required to give back the freeze ray, since once used to make it, the wonderflonium can not be removed from the device intact? But the freeze ray is of GREATER value than the raw materials, given the skill and genius required to design and build such a thing.

    That is, the contract is for a given value. The child adds value, but wishes to void the contract. What then?

    • In certain respects, I’d guess this would be like real estate – if you contract to buy property, improve it, and then because of violating the contract have to return the property, those improvements you have made (which have increased the value of the property), transfer back to the original owner, as well.

      However, with someting like wonderflonium, presumably some chemical, things may be different. While the fair market value of a freeze ray may be higher than the fair market value of the wonderflonium used to make it, there is an opportunity cost involved – you cannot make anything else out of the material, once you have made a freeze ray out of it, which removes one potential type of “value.” This is of particular interest to the sort of place which sells exotic chemicals, as they may be able to re-sell wonderflonium, but they may not be able to sell or gain any particular utility out of a freeze ray, particularly if such a device is not legal to own or sell (being a dangerous weapon). Of course, that would only help the minor avoid paying back the value of the contract.

  3. “[T]the rule wouldn’t apply to something like a freeze ray, since nobody really needs one.”

    Nobody really needs a freeze ray? I think you and I are of two totally different minds about this. I can think of a number of practical (if not entirely legal or ethical) daily uses for a freeze ray.

    Someone moving too slow in front of you as you approach the checkout? Freeze ’em!
    Co-workers talking your ear off with boring stories? Put ’em on ice!
    Whatever the season, there’s always a reason for the freezin’!

    It should be quite clear that I am apparently on a path toward supervillainy, so I look forward to continuing reading your blog so as to be prepared for my eventual time in court.

    • If someone were, per your hypothetical, moving too slowly in front of you, while you were approaching the checkout, wouldn’t freezing them… cause them to move yet slower? By very definition?

    • Just because something is very useful doesn’t make it a necessary. Things like cars and trucks, although quite useful, have been ruled not to be covered by the exception.

  4. “a wily young supervillain–especially one able to project the appearance of adulthood–might be able to abuse this defense for fun and profit”

    I don’t think this is true. As you say, while minors cannot be held to contracts, the can be held liable for their torts. Aside from the various liabilities that could rise from using the Freeze Ray, if you deceived someone into contracting with you, you could be liable for their damages. They would have to prove the elements of fraud:

    (1) a representation of an existing fact;
    (2) its materiality;
    (3) its falsity;
    (4) the speaker’s knowledge of its falsity;
    (5) the speaker’s intent that it shall be acted upon by the plaintiff;
    (6) plaintiff’s ignorance of its falsity;
    (7) plaintiff’s reliance on the truth of the representation;
    (8) plaintiff’s right to rely upon it; and
    (9) consequent damages suffered by plaintiff.

    The problem is that the use of a superpower to deceive doesn’t neatly fit these elements. However, if you replace speech with project, you can meet the elements. (1) She represents herself to be a certain age, not by speech but by appearance. (2) Her age is material to the transaction (seller wouldn’t sell wonderflonium to a kid). (3) This isn’t her real appearance, and (4) she knows it. (5) By conducted the transaction, she intended the seller to act on the illusion.
    The plaintiff (6) obviously wouldn’t know how old she was, (7) and wouldn’t have made the sale if he’d known her age (maybe). (8) The seller would be allowed to rely on her minority not to make the sale. (9) The seller could then get their damages.

    Again, it seems, that a junior supervillain who uses shapeshifting, illusion projecting, or mind altering to appear older, will probably be obligated to pay the cost of the contract, at least if she can be brought in to court.

    • A fine analysis, but by ‘project the appearance of adulthood’ I just meant the ordinary sort of looking older than one really is, not using powers to deceive another. Indeed, one wouldn’t even necessarily have to resort to fraud in the case you give, since many courts will bind a minor to a contract if the minor misrepresented his or her age (technically the minor is estopped from denying his or her asserted majority).

  5. So, are we referring to “true” age or “apparent age”?

    For example, a super that never (or very slowly) ages, and has the appearance of a 12 y/o , but who is 300 years old in fact. What if they have the mentality of a 12 y/o but the body of a adult (think Solomon Grundy)

    And what if we’re talking of a super-villain that has been kept in suspended animation for 50 years after throwing a tantrum at the ripe age of 13?

    • I think you bring up some interesting questions. I think someone with the mentality of 12 year old but body of adult (and actual lifespan of an adult) would be easy to deal with legally and would simply be considered to have an intellectual deficiency and treated under the law as such.

      Similarly, someone who aged slowly physically or not at all would be easy to treat legally, they may have to provide solid proof of their age, but afterwards would be handled as a fully adult. Now, if this ageless person wanted to keep their agelessness a secret, this would provide complications, but if it can be proven then the law is relatively simple.

      The suspended animation case would be more touchy. I suspect that for contracts they would be treated as someone who was 13. After all, the ability to renege contracts is based on common law so is widely open to interpretation and even change through the judiciary. That common law (as Mr. Daily points out in the article) is based on the policy of protecting minors from their youthful indiscretion and the person who was suspended at the age of 13 has not had the advantage of the years to develop maturity so I think most judges would treat him as 13 for contract purposes. For certain other matters that are handled by statute such as age of consent it would be more difficult. While a judge certainly still has some room for interpretation with a statute, it is less malleable than common law. I think it may come down to the wording of the statute, but a judge would be more likely to treat our hypothetical supervillain as a 63 year old for statutory matters such as age of consent. But again, that will be strongly influenced by the precise wording, if the judge has sufficient lee-way for interpration, they will likely stay with the 13 years the supervillain has actually experienced for the same policy reason.

      Now, things can get more complicated with someone with mental experiences far beyond their actual years. For instance, forced growth commonly goes along with cloning in superhero comics. Kon-el for instance emerged from a cloning tube with artificial memories and the body of a teenager. He will be physically in his early twenties with memories and even maturity to match when he is only a few years old in real time. In a pragmatic sense, it would seem silly to treat him as a minor, yet legally it seems that is what would be required, especially for statutory matters such as age of consent and ability to drink legally.

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