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May 7, 1968


Appeal from a judgment of the Circuit Court for Waukesha County: William E. Gramling, Circuit Judge.

Wilkie, J. Hallows, C. J. (minority OPINION(S)ing).

The opinion of the court was delivered by: Wilkie

On August 9, 1965, the plaintiff, Steven Kiefer, entered into a contract with the defendant, Fred Howe Motors, Inc. ("dealer" hereinafter) for the purchase of a 1960 Willys station wagon. Kiefer paid the contract price of $412 and took possession of the car. At the time of the sale Kiefer was twenty years old, married, and the father of one child.

Kiefer had difficulty with the car which he claimed was caused by a cracked block. Kiefer contacted the dealer and asked it to take the car back. Several other attempts to secure some adjustment with the dealer failed and Kiefer contacted Attorney Paul C. Konnor. The attorney wrote a letter to the dealer advising it that Kiefer was under twenty-one at the time of the sale. The letter declared the contract void, tendered return of the automobile and demanded repayment of the purchase price. There was no response so this action was commenced to recover the $412 purchase price. After a trial to the court, a judgment for the plaintiff was entered and the defendant appeals.

Three issues are presented on this appeal. They are:

1. Should an emancipated minor over the age of eighteen be legally responsible for his contracts?

2. Was the contract effectively disaffirmed?

3. Is the plaintiff liable in tort for misrepresentation?

Legal Responsibility of Emancipated Minor.

The law governing agreements made during infancy reaches back over many centuries. *fn1 The general rule is that ". . . the contract of a minor, other than for necessaries, is either void or voidable at his option." *fn2 The only other exceptions to the rule permitting disaffirmance are statutory *fn3 or involve contracts which deal with duties imposed by law such as a contract of marriage or an agreement to support an illegitimate child. *fn4 The general rule is not affected by the minor's status as emancipated or unemancipated. *fn5

Appellant does not advance any argument that would put this case within one of the exceptions to the general rule, but rather urges that this court, as a matter of public policy, adopt a rule that an emancipated minor over eighteen years of age be made legally responsible for his contracts.

The underpinnings of the general rule allowing the minor to disaffirm his contracts were undoubtedly the protection of the minor. It was thought that the minor was immature in both mind and experience and that, therefore, he should be protected from his own bad judgments as well as from adults who would take advantage of him. *fn6 The doctrine of the voidability of minors' contracts often seems commendable and just. If the beans that the young naive Jack purchased from the crafty old man in the fairy tale "Jack and the Bean Stalk" had been worthless rather than magical, it would have been only fair to allow Jack to disaffirm the bargain and reclaim his cow. However, in today's modern and sophisticated society the "infancy doctrine" seems to lose some of its gloss.

Paradoxically, we declare the infant mature enough to shoulder arms in the military, but not mature enough to vote; mature enough to marry and be responsible for his torts and crimes, but not mature enough to assume the burden of his own contractual indiscretions. In Wisconsin, the infant is deemed mature enough to use a dangerous instrumentality -- a motor vehicle -- at sixteen, but not mature enough to purchase it without protection until he is twenty-one.

No one really questions that a line as to age must be drawn somewhere below which a legally defined minor must be able to disaffirm his contracts for nonnecessities. The law over the centuries has considered this age to be twenty-one. Legislatures in other states have lowered the age. We suggest that the appellant might better seek the change it proposes in the legislative halls rather than this court. A recent law review article in the Indiana Law Journal explores the problem of contractual disabilities of minors and points to three different legislative solutions leading to greater freedom to contract. *fn7 The first approach is one gleaned from the statutes of California *fn8 and New York, *fn9 which would allow parties to submit a proposed contract to a court which would remove the infant's right of disaffirmance upon a finding that the particular contract is fair. This suggested approach appears to be extremely impractical in light of the expense and delay that would necessarily accompany the procedure. A second approach would be to establish a rebuttable presumption of incapacity to replace the strict rule. This alternative would ...

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