American Contract Law for a Global Age, 2017a

loss from the transaction, including the depreciation of the goods in question and the
value of their use while in the infant’s possession.
Other courts have gone to the opposite extreme and have conditioned the right
to disaffirmance upon the restoration of the innocent seller to status quo, holding that
in a proper case the infant’s recovery must be diminished by the amount that the
property has depreciated while in his possession or (and?) the value of its use during
that period. 2
The courts or legislatures in other jurisdictions have, however, rejected both
these extreme views and have taken the position that depreciation or use may be
deducted from the minor’s recovery under some circumstances but not others.
A. D. Kaufman, Infant’s misrepresentation as to his age as estopping him from
disaffirming his voidable transaction, 29 A.L.R.3d 1270:
The policy of the law to protect infants by permitting them to disaffirm
contracts into which they have entered, frequently seems to operate inequitably as to
the other contracting party who, having acted in all innocence, may be compelled to
bear the burden of his contract without being assured of any of its benefits. These
inequities are especially apparent in the situation where the other party contracted,
not only without knowledge of the infancy of his opposite number, but in reliance on
affirmative representations by the infant that he was in fact of proper age to contract.
Faced with the dilemma of choosing between the policy of protecting infants
and that of not rewarding fraud, some courts have chosen to give overriding effect to
the rule that an infant cannot be bound by his contract and have held that
notwithstanding the fact that the contract may have been induced by the infant’s
fraudulent misrepresentation of his age, it cannot be enforced against him, either at
law or in equity. Indeed, these courts have frequently gone further and held that the
infant, notwithstanding his fraud, may seek affirmative relief by suing at law to
recover such consideration as he may have paid, or by seeking a variety of equitable
remedies.
This seemingly harsh result has usually been justified, theoretically, on the
ground that an infant without legal capacity to contract cannot be held to have
2 [In the “rigidly enforcing the “right of avoidance” category, the author places Alabama,
Arkansas, Idaho, Illinois, Indiana, Louisiana, Maine, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, Texas, Utah, Vermont,
Washington, and Wisconsin. In the “restoration of the innocent seller to the status quo” category, he
lists Alabama, Arkansas, California, Colorado, Connecticut, District of Columbia, Illinois, Minnesota,
New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, South Dakota, New
Hampshire, Tennessee, and Texas. Note that several states (Alabama, Arkansas, Illinois, Minnesota,
New Hampshire, and Ohio) manage to appear on both lists. These lists should give you some idea that
the rules vary widely, and even the rules within a single state are occasionally confusing and difficult
to ascertain.—Eds.]
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244 CHAPTER V: CONTRACT DEFENSES