To every contract there must be two or more persons or PARTIES. When
Robinson Crusoe was on his island all alone, eating breadfruit and
entertaining himself by throwing stones at the monkeys, he perhaps had
a good time, but he could not make any contracts. But as soon as
Friday came along they could make contracts, trade, and cheat each
other as much as they pleased. A contract, therefore, is one of the
incidents of society. A person sailing in a balloon alone could not
make a contract, but if two were in the basket they might amuse
themselves by swapping jack-knives or neckties, and these exchanges
would be completed or executed contracts and would possess, as we
shall soon see, every element of a contract.
Again, persons must be able, or COMPETENT, to make contracts. What
kind of ability or competency must a person have? Not every person can
make a contract, even though he may wish to do so. A MINOR, or person
less than twenty-one years of age, though he may be very wise and
weigh perhaps two hundred and fifty pounds, can make very few
contracts which the law regards as binding. In fact, the only
contracts that a minor can make for which he is bound are for
necessaries--clothing, food, and shelter. Nor can he make contracts
even for these things in unlimited quantities. A minor could not go
into a store and buy six overcoats and bind himself to pay for them.
The storekeeper must have common sense in selling to him and keep
within a reasonable limit. In one of the well-known cases a minor
bought a dozen pairs of trousers, half a dozen hats, as many canes,
besides a large supply of other things, and, refusing afterward to pay
the bill, the merchant sued him, and the jury decided that he must
pay. The case, however, was appealed to a higher court, which took a
different view of his liability. The judge who wrote the opinion for
the court said that the merchant must have known that the minor could
not make any personal use of so many trousers, canes, and hats, and
ought not to have sold him so many. In short, the court thought that
the merchant himself was a young minor in intelligence and ought to
have known better than to sell such a bill to a person under age.
Of course it is not always easy to answer this question, WHAT ARE
NECESSARIES? Much depends on the condition of the person who buys. A
merchant would be safe in selling more to a minor living in an
affluent condition of life than to another living in a much humbler
way. Quite recently the question has been considered whether a
dentist's bill is a necessity, and the court decided that it was a
proper thing for a minor to preserve his teeth and to this end use the
arts of the dentist. Again, is a bicycle a necessity? If one is using
it daily in going to and from his work, surely it is a necessity. But
if one is using it merely for pleasure a different rule would apply,
and a minor could not be compelled to pay for it. Cigars, liquors,
theatre tickets are luxuries; so the courts have said on many
occasions.
The courts, in fact, regard a minor as hardly able to contract even
for necessaries, and he is required to pay for them for the reason
that as he needs them for his comfort and health he ought to pay for
them. In other words, his duty or obligation to pay rests rather on
the ground of an implied contract (which has been already explained)
than of an express one. The force of this reasoning we shall
immediately see.
Suppose a minor should say to a merchant who was unwilling to sell to
minors,--having had, perhaps, sad experience in the way of not
collecting bills of them,--"I am not a minor and so you can safely
trust me. I wish to go into business and wish you would sell me some
goods." Suppose that, relying on his statement, the merchant should
sell him hats or other merchandise for which he would afterward
decline to pay, on the ground that he was a minor. Suppose he proved
that he really was one--could the merchant compel him to pay the bill?
He could not compel him to fulfil his contract, because, as we have
already said, the law does not permit a minor to make a contract
except for necessaries. The court, then, would say to the merchant:
"It is true that you sold the goods to this minor; he has indeed lied
to you; still the court cannot regard a contract as existing between
you and him." On the other hand, a court will not permit a person to
defraud another, and the merchant could make the minor pay for the
_deceit_ or _wrong_ that he had practised on him; and the measure of
this wrong would be the value of the goods he had bought. Thus the
court would render justice to the merchant without admitting that the
minor could make a legal contract for the goods that he had actually
bought and taken away.