American Contract Law for a Global Age, 2017a

capacity to obtain the same result by his representations as to his age, and practically,
on the ground that to permit the other contracting party to obtain or retain benefits
under the contract on the ground of estoppel would be to emasculate the underlying
policy of protecting infants.
Other courts, more tender toward the defrauded party, have held that a
fraudulent misrepresentation of age by an infant may estop him to disaffirm the
contract. This result has been reached more readily where the infant was seeking
affirmative relief, in a legal or equitable action to recover the consideration paid. The
courts finding an estoppel in such cases frequently advert to Lord Mansfield’s dictum
that the defense of equity should be a shield and not a sword, or to such equitable
maxims as that he who seeks equity must do equity or that one coming into equity
must come with clean hands.
Even where the infant has been made a defendant in an action on the contract,
estoppel has frequently been applied against him, in actions at law, but more
especially in equity.
Statutes in a few jurisdictions have codified the rule that an infant may be
precluded from disaffirming where his fraudulent misrepresentations as to age
induced the contract.
Cheryl B. Preston & Brandon T. Crowther, Infancy Doctrine Inquiries, 52 SANTA
CLARA L. REV. 47 (2012):
A minor is liable on a contract for necessaries. Society wants to allow minors
to obtain items necessary for their survival where the minor has no other means to
do so. We therefore encourage adults to enter such contracts by assuring merchants
that minors' contracts for necessities will be binding. Applicability of this exception
is based on the need of the infant at the time of contracting, rather than on the nature
of the item contracted for. This approach limits the exception dramatically, and puts
the burden on merchants to make a judgment whether an item is a necessity for a
particular minor. Although society requires such an exception, the law limits its
scope. Thus, if a minor contracts for what would generally be a necessity, but that
minor has already been provided for by his parents or his parents are willing to
provide for him, the contract is not binding and the minor is permitted to disaffirm
it. Further, even when validly contracting for necessities, the minor is never held
liable for more than the actual value of the necessities. And finally, a minor is not
bound to an executory contract to pay for necessities—only for the portion that has
been received.
Deciding what a necessity is has been characterized by at least one court as a
two-step inquiry. First, the court must determine, as a matter of law, “whether the
subject of the contract is generally considered a necessity.” This is still a nebulous
inquiry beyond the obvious categories such as food and clothing that are easily within
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UNIT 13: CAPACITY TO CONTRACT 245