Saturday, January 5, 2013

“Contracts” with kids aren’t contracts

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.


VickyS said...

When my kids were younger, I used to repeat to them that discipline is a two-way street. When a child is misbehaving, I always told them, the parent has the responsibility to point it out and tell the child what the proper behavior is, and the child has the responsibility to listen to the parent and change the behavior. Often, when we saw children misbehaving in public, we would ponder the question: do you think it's a matter of the parent not telling the child what is wrong, or the child not listening to the parent and then doing what is right? The split seemed about 50-50 over time, and this led to lots of interesting discussions (and some pretty well-behaved children).

The point here is that, ultimately, you want your child to choose to behave properly because it's the right thing to do. You help them learn over time that doing the right thing has inherent rewards. Doing the right thing makes you feel good about yourself. You have friends. You earn the respect and trust of others, etc. Doing something simply to earn a privilege (the cell phone contract) or a reward (PBIS) or to avoid punishment (from an authoritarian parent)cheapens the acts and doesn't seem to promote true moral development.

And there is certainly sound public policy at work in the voidability of contracts by the minor. One of my children entered into an employment contract as a minor that would have moved him out of state for the summer. I kinda wondered why the company would bother trying to contract with a 17 year old! Needless to say, he didn't end up working out of state :-)

Chris said...

Vicki -- That's a great articulation of why you want a child to behave properly. I'm still puzzled by what the counterargument to your second paragraph is.