The latest thing to go viral is an eighteen-point “contract” that a mother insisted her 13-year-old son sign before she would let him have a cell phone. I don’t really have a problem with a parent who insists on certain rules before getting her kid a phone, since she’s under no obligation to get him a phone at all (though I do agree with most of what this parent has to say). But, as someone who taught Contracts to first-year law students for years, I’m awfully tired of people dressing up adult authority over children in the language of “contract,” especially because, in many instances—for example, with the bogus behavioral “contracts” foisted upon kids in many schools—the child is given no meaningful choice in the matter. (See this post.)
These parents and teachers might be less quick to boast about their contracts if they knew more about the actual law of contracts. The general rule in America is that contracts with minors are voidable at the option of the minor. That means the child can enforce the adult’s contractual obligations, but the adult cannot enforce the contract against the child. If an adult, for example, sells a car to a minor, and fails to turn over the car, the minor can sue to enforce the contract. But if the adult performs her side, the minor can still change his mind and back out. If the minor, for example, fails to make the payments on the car, the adult cannot hold him to the contract, so long as the minor returns the car—or what’s left of it. “A minor who has smashed an automobile or a house trailer need only return the wreck” to be excused from his own obligations under the contract, according to one authoritative treatise. “Even if a minor has squandered or destroyed what has been received, the loss is regarded as ‘the result of the very improvidence and indiscretion of infancy which the law has always in mind.’” There are a few exceptions to the rule, and individual states vary, but the general rule is still true in the wide majority of states.
In other words, one of the dumber things you can do, legally, is make a contract with a child. If this particular parent really thinks of her arrangement as a legal contract, she will be disappointed to learn that it is all downside, no upside for her. But of course everyone knows it’s not really a contract. If anything, it’s the opposite: if the kid reneges, the mother will take away the phone, but if the mother reneges, the kid has no recourse. It’s just the same old exercise of one-sided parental authority, no more or less legitimate than it ever was, aggrandizing label notwithstanding.