Replacing the Infancy Doctrine_34WhittierLRev141

REPLACING THE INFANCY DOCTRINE WITHIN THE
CONTEXT OF ONLINE ADHESION CONTRACTS
I. INTRODUCTION
Imagine an online retailer, specializing in first-person shooter and
combat style games, that has developed several different series of
computer games. The retailer offers a discount to purchasers on the
first game in each series if they agree to purchase at least one more
game at the regular retail price. As stated on the outside of each boxed
game, and on a pop-up window for each downloaded game, the
retailer's terms and conditions are automatically accepted by the
purchaser upon installation of the software. Those terms clearly state,
in boilerplate format, that by installing the discounted game, the
purchaser understands that it is non-returnable and agrees to purchase
at least one more game from the retailer.
The retailer's target market is young adult males, but recently it
has discovered a surge in sales to high school-age boys. It has also
discovered another recent trend - approximately one to two weeks after
purchase, many of those teenage boys are disaffirming the contract
agreed to upon installation and requesting to return the software and
receive a full refund. Pursuant to the infancy doctrine, upon
disaffirming, the minor's contract is void and the retailer is required to
provide the minor a full refund of the purchase price, while in
exchange the minor is only required to return any part of that purchase
which he still retains.1 In the case of a software download, the retailer
can only require that the minor delete the software from his computer
and hope that he does.2 This is hardly fair to the retailer; especially
when you consider that a skilled gamer can complete all of the levels of
1. Robert E. Richardson, Childrenandthe Recorded-MessageIndustry: The Need
for a New Doctrine, 72 VA. L. REv. 1325, 1332 (1986).
2. See id. at 1333. (The consideration in a sale of software is the software itself,
and there is no method for the retailer to monitor whether the purchaser has removed
the software if the contract is disaffirmed.)
141
HeinOnline -- 34 Whittier L. Rev. 141 2012-2013

WHITTIER LAW REVIEW
an average first-person shooter game in the course of one to two
weeks. 3
The infancy doctrine, which is still in use today, was born in an
era when minors were considered to be "infants" or "persons laboring
under mental incapacity" and therefore incapable of forming
contracts.4 Courts have historically utilized the infancy doctrine to
protect "minors from foolishly squandering their wealth through
improvident contracts with crafty adults who would take advantage of
them in the marketplace." 5 Yet today's adolescents are not "infants"
lacking any cognitive ability to reason or make decisions in the way the
drafters of the infancy doctrine imagined them well over one hundred
years ago, when minors miraculously gained the experience and
knowledge of an adult the moment they reached the age of majority. In
contrast, most teenagers today have the cognitive ability to think and
reason at the level of an adult,6 are generally more technically
advanced than their predecessors,7 and are constantly connected to
media8 allowing them to instantaneously receive information from and
learn about events occurring around the world.
While minors may still need to be protected in their face-to-face
commercial dealing with adults, given an adolescent's access to
technology today and amount of time an adolescent spends online,9 the
contracts entered into by adolescents today tend to be in the form of
online adhesion contracts agreed to with the simple click of a mouse.10
3. I determined the estimated time for a skilled gamer to complete an average first
person shooter game by questioning a small sampling of sales personnel and customers
at the local Game Stop.
4. Hosler v. Beard, 43 N.E. 1040,1042 (Ohio St. 1896).
5. Halbman v. Lemke, 99 Wis. 2d 241, 245 (1980).
6. Elizabeth S. Scott & Laurence Steinberg, Less Guilty by Reason of
Adolescence: Development Immaturity, Diminished Responsibility, and the Juvenile
Death Penalty, 58 AMERICAN PSYCHOLOGIST 1009, 1011 (Dec. 2003), available at
http://www.forwardthinkers-
drthompson.com/PDF5/LessGuiltybyReasonofAdolescence.pdf
7. Children and the Internet, VIRGINIA DEPARTMENT OF EDUCATION (June 2007),
http://www.doe.virginia.gov/support/technology/infobriefs/children internet.pdf.
8. The Henry J.Kaiser Family Foundation, GenerationM2 - Media in the Lives of
8-to-18-Year-Olds, A KAISER FAMILY FOUNDATION STUDY 2 (2010), available at
http://www.kff.org/entmedia/upload/8010.pdf
9. Id.
10. Wayne R. Barnes, Toward a FairerModel of Consumer Assent to Standard
Form Contracts: In Defense ofRestatementSubsection 211(3), 82 WASH. L. REv. 227,
142 Vol. 34

MINORS AND ADHESION CONTRACTS
Because the infancy doctrine, as it is currently written, negates
responsibility and accountability for minors, it is outdated and needs to
be replaced within the context of minors forming online contracts in
this age of technology. Minors should instead be assigned increasing
responsibility and accountability, as they grow older, similar to the rule
ofsevens used for minors in other areas of law.11
II. MINORS' RIGHTS - A HISTORICAL PERSPECTIVE
Historically, the common law has distinguished children from
adults;12 however, over the past century there has been a move toward
granting minors increasing rights and responsibilities.13 Until the 19th
century, children were considered chattel and had no rights separate
and apart from their parents (more precisely their fathers).14 Prior to
the 1960s, when the age of majority in the United States was still
twenty-one, adolescents were not considered capable of providing
informed consent with regard to emergency healthcare because it was
believed that they lacked the skills for capable decision making.15
It
was not until 1967 that children were considered " 'persons' under our
Constitution" when the Supreme Court determined that the Fourteenth
Amendment's due process clause also applied to children. 16 Only a few
years later, in 1971, the Twenty-Sixth Amendment reduced the voting
age from twenty-one to eighteen, and a change in the age of majority
followed in most states. Today, the age of majority in the United
States remains at eighteen in all states except Alabama, Mississippi,
Nebraska, and Pennsylvania.18 Courts have generally described the
purpose of the infancy doctrine "to discourage adults from entering into
potentially unfair contracts with minors" because minors "lack the
229 (2007).
11. Cardwell v. Bechtol, 724 S.W.2d 739, 745 (Tenn. 1987).
12. 2 Samuel Williston, Contracts §223 (3d ed. 1959).
13. Lawrence Schlam and Joseph P. Wood, M.D., Informed Consentto the Medical
TreatmentofMinors: Law andPractice,10 HEALTH MATRIX 141, 147 (2000).
14. Id.
15. Id.
16. Id.
17. Id.at 148.
18. Age of Majority by State and United States Possession, DoD Financial
Management Regulation, Volume 7B, Appendix H, (Jan. 2012), at H-2,
http://comptroller.defense.gov/finr/07b/07b appendix-h.pdf.
2012 143

WHITTIER LAW REVIEW
judgment and experience to protect themselves,"1 9 but in recent
decades there has been a shift toward "increasingly holding [minors]
responsible as adults for their missteps in using their new freedoms." 20
Author Robert Richardson pointed out that, "[o]ne of the oldest
protections afforded the minor in business dealings is the right to
disaffirm contracts."21 As currently applied, the infancy doctrine, or
right of disaffirmance, allows a minor, up until reaching the age of
majority, to disaffirm, or void, a contract entered into during his
minority that later proves to be prejudicial to him.22 An exception to
this right of disaffirmance is that a minor may not void a contract
entered into for necessaries, such as room, board, apparel, medical aid,
and education, which are considered reasonably essential for the
preservation and enjoyment of life.23
While the infancy doctrine was recognized at common law as
early as 1292, it was not until the Ohio Supreme Court in Hosler v.
Beardinvoked this doctrine in 1896 that American courts made a move
to treat minors differently than adults.24 Major changes to the rights of
children under the law did not unfold until more than sixty years later,
when Jean Piaget generated his model of cognitive development,
theorizing that children moved sequentially through distinct stages of
cognitive development.25 Piaget theorized that children entered the
final stage of cognitive development after age eleven, and it was in this
stage that a child's cognitive abilities to think and reason were
comparable to that of an adult.26
19. Richardson, supranote 1,at 1333.
20. Megan E. Hay, IncrementalIndependence: Conforming the Law to the Process
ofAdolescence, 15 WM. & MARY J.WOMEN &L. 663, 665 (2009).
22. Id.
23. Michael Wayne Brooks, Kids Waiving Goodbye to theirRights: An Argument
Against Juveniles' Ability to Waive their Right to Remain Silent During Police
Interrogations,13 GEO. MASON L. REv. 219, 229-30 (2004).
24. Hosler,43 N.E. at 1042; See also Rhonda Gay Hartman, Adolescent Autonomy:
Clarifyingan Ageless Conundrum, 51 HASTINGS L. J. 1265, 1302 (2000). (Even the
Uniform Commercial Code, which has had a substantial influence on modem contract
law, has failed to displace the disaffirmance rule first invoked in Hosler.)
25. Joel V. Oberstar, Elise M. Anderson, and Jonathan B. Jensen, Cognitive and
Moral Development, Brain Development, and Mental Illness: Important
Considerationsfor the JuvenileJusticeSystem, 32 WM. MITCHELL L. REv. 1051, 1052-
53 (2006).
26. Id. at 1053.
144 Vol. 34

Despite the law's move to treat minors more like adults, a minor
who disaffirms a contract often needs only to return the portion of the
consideration he still retains, while the adult is required to return all of
the consideration paid.27 For this reason, the rule of disaffirmance has
been characterized as a "double-edged sword."28 The very rule that
protects minors against "improvident judgments and impaired
decisional ability" also "negates responsibility and accountability." 29
Additionally, the rule is considered to be arbitrary and unjust because it
requires a contracting adult who bargains in good faith to bear the risk
of disaffirmance by an adolescent, "despite the possibility that the
contracting adolescent may be more mature or have business acumen
that may equal, or even exceed, that of adults." 30 Likewise, "the rule
may actually invite contrived overreaching or fraud by an adolescent"
which it seeks to prevent from an adult. 31
As early as 1968, the infancy doctrine began losing some of its
luster when the court in Kiefer v. FredHowe Motors, Inc. pointed out
that
[p]aradoxically, 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.32
Although the judgment in this landmark case was affirmed, the
dissenting judge was clear to point out that "[t]he magical age limit of
21 years as an indication of contractual maturity no longer has a basis
27. Rhonda Gay Hartman, AdolescentAutonomy: ClarifyinganAgeless
Conundrum, 51 HASTINGS L. J. 1265, 1302 (2000).
28. Id.
29. Id. at 1303.
30. Id.
31. Id.
32. Kiefer v. Fred Howe Motors, Inc., 39 Wis. 2d 20, 24 (1968). (In 1965, Steven
Kiefer, a minor who was twenty years old, married, and had one child, entered into a
contract to purchase an automobile. He sought to return the car and disaffirm the
contract after discovering that the engine had a cracked block.)
2012 145

WHITTIER LAW REVIEW
in fact or in public policy."33 The same argument could be made today
of the "magical age limit" of eighteen. Having a static dividing line
between infancy and adulthood does not correspond to a minor's
increasing ability to think and to reason like an adult as he ages. 34 The
dissenting judge in Kiefer pointed out more than forty years ago that
the infancy doctrine was outdated and needed to be changed.
That an adolescent may have business acumen that equals or
exceeds that of an adult is well illustrated by the Securities and
Exchange Commission's 2000 investigation of Jonathan Lebed, who at
age fifteen profited from an alleged scheme to defraud adult investors
of nearly one million dollars via the internet, in violation of federal
securities laws.36 This was the first time in history that the Securities
and Exchange Commission had investigated or prosecuted a minor.37
Another illustration is that of Thomas Suarez, a sixth grader in
Manhattan Beach, California who has already written and released
several apps on the Apple App Store. Thomas began learning
Apple's SDK and Xcode after teaching himself programming basics in
C, Java, and Python.39 At the tender age of twelve, he started his own
company and has set the world record for the Youngest App
Developer.40
The law has traditionally justified the infancy doctrine, allowing
minors the right to disaffirm their contracts, by relying on the premise
that minors require protection from their own lack of judgment and
33. Kiefer, 39 Wis. 2d at 29 (Hallows, J., dissenting).
34. Id.
35. Id.
36. Michael Lewis, SEC and the Boy Trader Who Hit it Big, CHICAGO SUN-TIMES
Oct. 29, 2000, at 49, availableathttp://www.highbeam.com/doc/1P2-4572179.html.
37. Former SEC Branch Chief Convicted of "Pump and Dump" Fraud,
STOCKBROKERLAWYER.COM, BAD BROKER BLOG,
http://www.stockbrokerlawyer.com/blog/post/former_secbranchcheif convictedof
pump and dumpfraud/ (last visited Nov. 25, 2012).
38. Tecca, Junior High App Developer is a Pre-teen Tycoon in Training,YAHOO!
NEWS,(Nov. 11, 2011), http://news.yahoo.com/blogs/technology-blog/junior-high-app-
developer-pre-teen-tycoon-training-002455041.html.
39. Id.
40. Youngest App Developer: Thomas SuarezSets World Record, WORLD RECORD
ACADEMY (Nov. 17, 2011),
http://www.worldrecordacademy.org/youngest/youngestAppdeveloperThomasSua
rez sets world record1 12585.html.
146 Vol. 34

experience.41 This is an archaic notion in a time where adolescents
spend, on average, more than nine hours a day using electronic devices
and accessing media, including watching television, surfing the internet
on computers and mobile phones, listening to digital media players,
and talking and texting on their mobile phones.42 The use of electronic
media, such as computers, video games and cell phones, has been
shown to increase a child's eye/hand coordination, increase precision
and focus, and increase the ability to multi-task.43 Children may learn
more from video games and apps "than how to blow away bad guys,
drive too fast and defeat virtual dragons."44 Analysis has shown that
they learn how to "adapt to rapid change and develop patience as they
move from level to level." 45 These "higher-order skills" may actually
help children compete in a global economy.46 The development of
these skills by minors is another reason why the law defining the ability
of a minor to contract should be redefined within the context of online
adhesion contracts.
III. THE SOPHISTICATION OF TODAY'S YOUTH
A stunning report published recently found that children ages
eight to eighteen devoted an average of over seven and one-half hours a
day to using "entertainment media."47 That average jumped to nearly
41. Richardson, supranote 1, at 1332-33.
42. Rob Frappier, How Much Time Do Your Kids Spend Online?, REPUTATION.COM
(Jan. 20, 2010), http://www.reputation.com/blog/2010/01/20/how-much-time-do-your-
kids-spend-online/.
43. A Southeast Missouri State University child development study of four- and
five-year-olds found that use of developmental software increased their IQ by an
average of six points. "The children also showed significant gains in long-term
memory, fine motor skills, and structural knowledge." Leslie Bennetts, Do Computers
Make Kids Smarter? The Answer May Surprise You.,
http://www.kl2.hi.us/-achang/tethree/skills/White Papers/scomp.htm (last visited
Nov. 25, 2012). See also Linda Creamer, An Innovative Technologyfor Individuals
with Autism Spectrum Disorders,PLAYATTENTION.COM (Aug. 1, 2005),
http://www.playattention.com/an-innovative-technology-for-individuals-with-autism-
spectrum-disorders/.
44. Paul Nyhan, Young Gamers Building Real Skills, SEATrLEPI.COM (Oct. 17,
2006), http://www.seattlepi.com/business/article/Young-gamers-building-real-skills-
1217468.php.
45. Id.
46. Id.
47. The Henry J. Kaiser Family Foundation, supra note 8, at 1. (Entertainment
2012 147

WHITTIER LAW REVIEW
eleven hours a day when researchers took into account the time the kids
spent "media multitasking" (using more than one medium at a time).48
Even today, television and music dominate children's media
consumption, although these "old" forms of media are being delivered
in entirely "new" ways, such as through Hulu or iTunes on a computer
or smart phone.49 Today, "[s]mart phones, MP3 players, laptops and
other devices are the air kids breathe - perhaps too deeply. . . [as]
they're becoming champion multitaskers, packing content on top of
content for an even heavier onslaught" of electronic media.50 It was
recently noted that "[k]ids these days can use a mouse before they can
learn to tie their shoes or ride a bike," and despite gender differences in
other areas of child development, "there is no [such] gender division
between boys and girls in their technology skills."51 Considering that
nearly half of children between the ages of eight and seventeen who
use the internet have a profile on a social networking site,52 alonA with
forty percent of online gainers being under the age of eighteen, it is
no wonder that marketing companies are increasingly targeting youth
to capture a share of this rapidly emerging market in the digital world.
When it comes to the modern digital world, children generally
understand games, social networking, and virtual worlds better than
adults.54 Adolescents today are involved in increasingly complex
media includes television, music/digital audio, computer, video games, print media and
movies, including the consumption on mobile media devices such as cell phones and
handheld game players.)
48. Id. at 2.
49. Id. at 3.
50. Leanne Italie, Technology Use Up in Kids; Parents Losing Ground, THE
HERALD-SUN (Feb. 2010), http://www.heraldsun.com/view/full-story/5726482/article-
Technology-use-up-in-kids--parents-losing-ground.
51. Audrey Watters, Panic!Childrenare Learningto Use Technology at an Early
Age!, HACK EDUCATION (Jan. 24, 2011),
http://www.hackeducation.com/2011/01/24/panic-children-are-learning-to-use-
technology-at-an-early-age/.
52. Darren Waters, ChildrenFlock to Social Networks, BBC NEWS (April 2, 2008),
http://news.bbc.co.uk/2/hi/technology/7325019.stm.
53. Mike Antonucci, 70 PercentofAmericans Play Video Games, MILITARY.COM,
Games (Apr. 3, 2008), http://www.military.com/entertainment/games/game-news/70-
percent-of-americans-play-video-games.
54. Perri Klass, M.D., Seeing Social Media More as PortalThan as Pitfall, N.Y.
TIMES Jan. 9, 2012, availableat
http://www.nytimes.com/2012/01/10/health/views/seeing-social-media-as-adolescent-
portal-more-than-pitfall.html.
148 Vol. 34

transactions online such as "leveling up,"55 purchasing and selling
virtual goods, and managing money and property. 56 But do these skills
translate to the real world? Do adolescents today appreciate that the
licensing or user agreement they must accept in order to access a
website, open an email account, or download a game, music, or
software is a binding contract? At a minimum, most kids today are
aware, or are made aware, of the rules that apply within websites and
online games because they are often prevented from performing those
57
actions that are not permitted. For example, under their user
agreements, games such as Farmville and World of Warcraft do not
permit users to sell in-game items or currency for "real" money, despite
having been purchased with real money, and do not recognize any
purported sales or transfers of virtual property outside of the game.
Additionally, children, even those in the "tender years," know that they
need a parent's password or credit card to purchase and download
books, games, movies and music, when a game or app requires that one
be entered. With the sophistication of today's children, it is time to
re-think the infancy doctrine and its application to adolescents with
respect to online contracts in a digitally connected world.
IV. TREATMENT OF MINORS IN OTHER AREAS OF LAW
Author Michael Brooks brought to light the inconsistency in the
treatment ofminors under the law when he noted that:
55. Brian D. Ng & Peter Wiemer-Hastings, Addiction to the Internet and Online
Gaming, 8(2) CYBERPSYCHOLOGY & BEHAVIOR 110, 111 (2005). ("Leveling up" is the
process of moving to the next higher level in an online or digital game.)
56. DiabloIIIAuction House -Functionality,
BATrLE.NET,https://us.battle.net/support/en/article/diablo-iii-auction-house-
functionality (last visited Nov. 25, 2012); see also Roger C. Wood, Life takes virtual
currency, CNN.COM (Dec. 8, 2009), http://tech.fortune.cnn.com/2009/12/08/life-takes-
virtual-currency (for the proposition that the future economy will thrive by converting
real money into "virtual currency", which younger generations will adapt to faster than
older generations).
57. Terms ofService [FarmvilleJ,ZYNGA.COM, http://www.zynga.com/about/terms-
of-service.php (last updated Sept. 30, 2011); Terms of Use [World of Warcraft],
BLIZZARD.COM http://us.blizzard.comlen-
us/company/about/termsofuse.htmI (last updated June 7, 2012).
58. Id.
59. When downloading music, movies, or apps from Amazon.com or iTunes a
credit card or password is required in order to complete the purchase.
2012 149

WHITTIER LAW REVIEW
Criminal and civil law have different procedures, involve different
due process rights, and arguably, even serve different purposes. It
is not necessary, or even desirable, to make one mirror the other in
these respects. However, the assumptions on which the rules of
the criminal and civil justice systems are based should be
consistent. Whether or not a child actually lacks the experience,
wisdom, and self-control necessary to recognize the consequences
of entering into an agreement should not depend on whether the
child is in criminal or civil court. However, courts come to
different conclusions as to a child's competency depending on
whether the child is being charged with a crime or accused of
breaching a contract. 60
Courts should treat minors consistently with respect to their
competency regardless of in the justice system in which they are being
tried. Use of the rule ofsevens in other areas of law61 appears to be a
more logical and practical approach to defining a child's capacity than
the approach currently used by contract law. Because of the
sophistication of today's adolescents, contract law should also utilize
this rule to determine a minor's capacity to contract within the context
of online adhesion contracts.
A. CRIMINAL LAW
Prior to the 21st Century, a child between the ages of ten and
fourteen could not be convicted of a crime unless it appeared from the
evidence that he knew the difference between right and wrong.62
Historically, "although most states considered small children incapable
of forming criminal intent, minors who committed crimes and were
deemed competent to stand trial were punished using the same courts,
the same rules, and even the same prisons as adults." In the mid-18th
Century, Sir William Blackstone, a highly regarded English lawyer,
identified those groups of people who were incapable of committing a
crime, the first being "infants." 64 These were not infants in the modem
sense of the word, but rather Blackstone drew a distinction between an
60. Brooks, supranote 22, at 232.
61. Cardwell,724 S.W.2d at 745
62. SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND: BOOK
THEFOURTH 21-22 (A. Strahan, 16th ed. 1825).
64. BLACKSTONE, supranote 62, at 21-22.
150 Vol. 34

infant and an adult at the point where one could understand one's
actions.65 In criminal cases during Blackstone's time, the common law
rested its presumptions concerning children upon the multiples of
seven approach, similar to the rule of sevens used in common law.66
Thus, below the age of seven a child was conclusively presumed
incapable of committing a felony as a matter of law, while, between the
ages of seven and fourteen, the presumption was rebuttable.67
Beginning at age fourteen the presumption became conclusive that the
child was capable of committing a crime, and he was subject to
conviction and penalties as an adult, even including capital
punishment.68 By the end of the 19th Century, states began creating
juvenile courts to adjudicate crimes committed by minors.69 And by
the middle of the 20th Century, the Supreme Court "recognized the
severity of punishment minors faced in juvenile courts and concluded
that due process was necessary to protect their interests."70
Utilizing something similar to the multiples of seven approach
used in criminal law is a superior method of determining a minor's
competence to contract online. This is especially true in modem times
where adolescents have great exposure to media and computers on a
daily basis, may be more technologically savvy, and possess greater
business acumen than their parents, siblings, and peers. 71 This would
better align the remedy to the action where an adolescent clearly has
the capacity to understand the wrong he is committing.
B. TORT LAW
In negligence actions under tort law, minors are generally held to
a different standard of care than adults.72 In most jurisdictions, courts
embrace the "tender years" doctrine to determine if a child is presumed
65. Id. at 21
66. Id. at 21-22.
67. Id.
68. Id. at 22.
69. Oberstar, supranote 25, at 1051.
71. Leigh Goessi, Technology: Its effects on children, HELIUM.COM (Sept. 25,
2007), http://www.helium.com/items/613503-technology-its-effects-on-children; Brad
Stone, The Children ofCyberspace: OldFogiesby Their20s, N.Y. TIMES, Jan. 9, 2010,
http://www.nytimes.com/2010/01/10/weekinreview/10stone.html?_r-1.
72. Restatement (Second) of Torts §283A (1965).
1512012

WHITTIER LAW REVIEW
capable of negligence.73 "A child of 'tender years' is one of 'such
immature years as to be incapable of exercising the judgment,
intelligence, knowledge, experience and prudence demanded by the
standard of the reasonable man applicable to adults,' and who, b
reason ofhis youth, lacks the capacity to know or realize the danger."' 4
Not all states apply some version of the "tender years" doctrine.75 In
those states that do, the majority hold that a child age five or younger is
conclusively presumed to be incapable of negligence as a matter of
law, although in some jurisdictions this age may be as high as six or
76
seven.
The Illinois Rule, a popular form of this doctrine, commonly
referred to as the rule of sevens, mirrors the multiples of seven
approach used in criminal law. 77 This rule holds that a child between
the ages of seven and fourteen is presumed to be incapable of
negligence, however, this presumption is rebuttable and the burden is
on the plaintiff to prove that the child has the capacity for negligence.7 8
Children age fourteen and beyond are presumed capable of negligence
and the burden then shifts to the minor to prove lack of capacity.
C.ADOLESCENT CONSENT INHEALTH CARE DECISIONS
In the context of health care decisions, a person of any age is
considered legally competent and is capable of giving informed
consent to medical treatment when that consent is made knowingly,
intelligently, and voluntarily.80 Competence in this context refers to:
intellectual capacity, experience, and knowledge necessary to
substantially understand the situation at hand and the
consequences of the choices that can be made, or the capacity to
understand and evaluate the type of procedure that the physician
73. Lori Rinella, Note, Children of Tender Years and ContributoryNegligence, 63
UMKC L. REv. 475, 478-79 (1995).
74. Id. at 479.
75. Id. at 479-80.
76. Id.
77. Id.
78. Id. at 480.
79. Id.
80. Kimberly M. Mutcherson, Minor Discrepancies: Forging a Common
Understanding of Adolescent Competence in Healthcare Decision-Making and
CriminalResponsibility,6 NEV. L.J. 927, 931 (2006).
152 Vol. 34

intends to use . . . and the possible complications associated with
the use of the procedure. 81
In determining a minor's capacity to consent to medical
treatment, courts have discussed at great length the common law rule of
sevens.82 The courts in Cardwellv. Bechtol and In re E.G. held that a
mature minor, based on the common law of the state, had the capacity
to consent to medical procedures.83 Modernly, a presumption of
incompetence for the purpose of consent to treatment may discourage
minors from accessing needed medical care "for fear of having to
confront their parents."84 This unintended consequence is the rationale
behind statutes that permit adolescents access to contraception or
abortion and treatment for prenatal care, sexually transmitted diseases,
or drug treatment without parental consent or notification.85
Additionally, today, as a result of the "mature minor" doctrine, which
is modeled after the rule of sevens utilized in criminal law, "doctors
may now treat children [and be protected against liability], even in the
absence of parental consent or court order, because it has become
reasonable to assume that mature children are capable of providing
informed consent pertaining to their own medical treatment."86 With
the rule of sevens being utilized in determining a minor's capacity in
87 88
criminal law, in negligence actions under tort law, and in consent to
health care decisions, it is time for contract law to follow suit and
utilize this rule and system of analysis in determining a minor's
capacity to enter into a contract online, and in holding him increasingly
responsible for his actions as he matures.
V. COGNITIVE DEVELOPMENT IN ADOLESCENTS
The view that adolescents should be accorded a level of
decisional autonomy, or decisional capacity, is supported by the
scientific and developmental research done by Piaget and his
81. Id.
82. See Cardwell,724 S.W.2d at 745; In re E.G., 549 N.E.2d 322, 322 (Ill. 1989).
83. See Cardwell,724 S.W.2d at 739.
84. Mutcherson, supranote 79, at 933.
85. Id. at 933-34.
86. Schlam, supra note 12, at 142-43.
87. Rinella, supranote 72, at 480.
88. Id.
89. Schlam, supranote 12, at 142-43.
2012 153

WHITTIER LAW REVIEW
contemporaries in the mid-1900s. 90 This research provided a scientific
basis for the rule of sevens utilized in criminal and tort law.91 Piaget
"theorized that children move sequentially through four stages of
cognitive development."92 First, in the sensorimotorstage (from birth
to about age twol, behaviors are limited to simple motor responses to
sensory stimuli.9 Second, in the preoperationalstage (between ages
two and six), although children are unable to take the point of view of
others,94 they become increasingly adept at using symbols, as
evidenced by their increase in role playing and pretending. Third, in
the concrete operationalstage (from age six until about age eleven),
children begin thinking logically about concrete events, but still have
difficulty understanding abstract concepts.96 Children in this stage are
able to use inductive reasoning but have not yet developed the ability to
use deductive reasoning.97 Lastly, in the formal operational stage
(from age twelve on), skills such as logical thought, abstract thinking,
deductive reasoning, and systematic planning emerge.98
In recent decades, researchers have questioned the timing of
Piaget's stages and whether cognitive development actually occurs in
distinct stages or is a continuous process.99 Most researchers today
agree that children possess many of the cognitive abilities at an earlier
age that Piaget suspected.100 Piaget's underestimation of the timing of
children's cognitive abilities may be due to modem belief that
"children understand a concept before they are able to demonstrate
90. Oberstar, supranote 25, at 1051-53.
91. Id.at 1054.
92. Id.at 1052.
93. Id.
94. Id.(the term for this behavior isegocentrism, or egocentric thinking).
95. Id.
96. Id. at 1052-53.
97. See id. Inductive reasoning is the ability to take specific events and form a
general principle, while deductive reasoning isthe ability to reach a specific conclusion
based on a general principle. DeductionandInduction, RESEARCH METHODS
KNOWLEDGE BASE (Oct. 20, 2006),
http://www.socialresearchmethods.net/kb/dedind.php.
98. Oberstar, supranote 25, at 1053.
99. Cognitive Development- Overview ofCognitive Development,Piaget'sTheory
of Cognitive Development, Vygotsky's Sociocultural Theory,
http://social.jrank.org/pages/145/Cognitive-Development.html (last visited Nov. 25,
2012).
100. Id.
154 Vol. 34

their understanding of it."101 Because adolescents possess the cognitive
abilities to think and reason like an adult by age thirteen or fourteen, 102
adolescents between the ages of fourteen and seventeen should be
accorded the same contractual responsibility as an adult when entering
into contracts online. With respect to online contracts, treating minors
in accordance with their intellectual capacity rather than their
chronological age would seem be the more logical approach for
contract law.
VI. WHEN THE CURRENT LAW CONFLICTS WITH TODAY'S
CONSTANTLY CONNECTED ADOLESCENT
As early as ten years ago, "courts required affirmative evidence of
agreement to form a contract."103 Today, however, courts "seem
willing to accept the idea that if a business writes a document and calls
it a contract, courts will enforce it as a contract even if no one agrees to
it." 104 This is most evident in the use of "shrink wrap license"
agreements.105 The term "shrink wrap license" was coined for the
terms and conditions ofuse agreements for boxed software which were
either: (1) contained on the plastic shrink wrap that covered the box
and became binding upon removal of the shrink wrap, or (2) contained
inside of the box and noted on the plastic wrap that the terms contained
therein became binding upon the installation and use of the
software. 106 The status of shrink wrap agreements in the United States
still remains unclear; however, courts seem to be more willing to
enforce shrink wrap agreements of the second type. 107 In ProCD,Inc.
v. Zeidenberg,the United States Seventh Circuit Court of Appeals held
that the "shrink wrap license included with software was binding on
[the] buyer" because the full text of the agreement was presented to,
101. Id.
102. Id.
103. Woodrow Hartzog, The New Price to Play:Are Passive Online Media Users
Boundby Terms of Use?, 15 COMM. L. & POL'Y 405, 407 (2010).
104. Id. at 408.
105. Margaret Jane Radin, Humans, Computers, andBinding Commitment, 75 IND.
L. J.1125, 1134 (2000).
106. Id.
107. Id.
2012 155

WHITTIER LAW REVIEW
and required to be assented to, upon installation of the software in
order to proceed. 0 8
While shrink wrap licenses and agreements are still widely used
in the retail market today, the most prevalent type of contract both
adults and children alike encounter is the "click wrap" or "click
through" agreement.109 The name stems from its predecessor, the
shrink wrap agreement, and generally refers to one of two types of
contracts: (1) Terms of Use or Conditions of Use agreements contained
in small print as a link at the bottom of the home page of a website and
passively agreed to, purportedly without the user's knowledge, merely
by visiting the website;Il 0 or (2) Terms of Service or Licensing
agreements which are presented in full to the user and must be actively
agreed to by clicking on the "IAgree" button in order to proceed to the
website, utilize the service, or purchase and download the desired
electronic media. In an age where adults are bound to the terms of
such contracts, whether or not they read or fully appreciate these
agreements before indicating their assent, adolescents, with their often
superior knowledge of the digital world, should also be bound to these
click wrap contracts.
To most people who have spent any time browsing the internet,
creating an email account, accessing a social networking site, or
downloading media, it is quite apparent that the agreements entered
into with the developers of these websites are "not your father's
contracts." The days of discussing and negotiating a contract face-to-
face with another party are a thing of the past when it comes to the
digital world where contracts are presented on a "take it or leave it"
basis.112 The design and presentation of standard-form contracts,
particularly those found online, significantly frustrates an individual's
ability, regardless of their age, to read and understand these
108. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1447-48 (7th Cir. 1996).
109. See Radin, supranote 104, at 1134. See infra notes 110 and I11 for examples
of terms of use agreements.
110. YOUTUBE, http://www.youtube.com/ (last visited Nov. 25, 2012); GOOGLE,
https://www.google.com/ (last visited Nov. 25, 2012); NATIONAL PUBLIC RADIO,
http://www.npr.org/ (last visited Nov. 25, 2012).
111. An example is that of iTunes, which requires users to agree to their terms of use
upon registering for an iTunes account, as well as, to agree to individual charges that
will be made against the user's credit or gift card for purchases made within iTunes.
112. Hartzog, supranote 102, at 407.
156 Vol. 34

contracts.113 "People who sign [or agree to] standard form contracts
rarely read them" because they are generally "present[ed]. . . for
signature on a 'take it or leave it' basis." 14
To illustrate the point that users rarely read these agreements,
British retailer GameStation updated their terms of service agreement,
as a qa , to include the "immortal soul clause" on April Fool's Day
2010. The clause stated that customers agreeing to their terms of
service, which is required prior to making an online purchase, granted
the company the right to claim their soul:
By placing an order via this Web site on the first day of the fourth
month of the year 2010 Anno Domini, you agree to grant Us a non
transferable option to claim, for now and for ever more, your
immortal soul. Should We wish to exercise this option, you agree
to surrender your immortal soul, and any claim you may have on
it, within 5 (five) working days of receiving written notification
from gamesation.co.uk or one of its duly authorized minions.116
The terms went on to state that:
[W]e reserve the right to serve such notice in 6 (six) foot high
letters of fire, however we can accept no liability for any loss or
damage caused by such an act. If you a) do not believe you have
an immortal soul, b) have already given it to another party, or c)
do not wish to grant Us such a license, please click the link below
to nullify this sub-clause and proceed with your transaction.117
Those shoppers who read through the entire agreement were
given a simple check box option to opt out, and were duly rewarded
with a £5 voucher, although very few did. GameStation
subsequently noted "it would not be enforcing ownership rights, and
planned to email customers nullifying any claim on their soul." 19
113. Id. at 408.
114. Id. at 407.
115. 7,500 Online Shippers Unknowingly Sold Their Souls, FoxNEWS.COM (Apr. 15,
2010), http://www.foxnews.com/scitech/2010/04/15/online-shoppers-unknowingly-
sold-souls/.
116. Id.
117. Id.
118. Id.
119. Id.
2012 157

WHITTIER LAW REVIEW
Courts are increasingly reluctant to disaffirm "digital" or online
contracts on the basis of the infancy doctrine despite the doctrine
remaining a necessary protection of children's rights in the brick-and-
mortar world in which we live.120 In a recent example of a failed
attempt to invoke the infancy doctrine as a defense to void the terms of
a click wrap agreement, high school students in Tucson, Arizona and
Fairfax, Virginia were required to register and agree to the user
agreement of Turnitin, an anti-plagiarism program owned and operated
by iParadigms, to submit their school papers. Turnitin electronically
compares works submitted by students to commercial databases of
periodicals, journal articles, content available on the Internet, and
student works previously submitted to Turnitin.122 The software then
produces an originality report for teachers to use in evaluating the
originality of a student's work.123
The students in iParadigmsattached disclaimers to their written
works submitted to Turnitin stating that they did not consent to
Turnitin's archiving of their works; however, the court found that the
existence of such disclaimers did not modify the user agreement or
render it unenforceable.124 The court held that although the infancy
defense was intended as a "shield to protect the [minor] from injustice
and wrong . .. [it] cannot function as 'a sword to be used to the injury
of others.' "125 The court further explained that "[i]f [a minor] enters
into any contract subject to conditions or stipulations, he cannot take
the benefit of the contract without the burden of the conditions or
stipulations."l26 Furthermore, the court found that Turnitin's use of
students' papers for the purpose of preventing plagiarism and
protecting the students' written works from plagiarism was fair use. 127
The court found that Turnitin's use of student works was fair use
because it stores student works digitally and reviews them
electronically for comparison purposes only, which significantly limits
120. Victoria Slade, Note, The Infancy Defense in the Modern Contract Age: A
Useful Vestige, 34 SEATTLE U. L. REv. 613, 620 (2011).
121. A.V. v. iParadigms, 544 F. Supp. 2d 473,477-78 (2008).
122. Id.
123. Id. at 478.
124. Id.at 480.
125. Id.at 481.
126. Id.
127. Id.at 482.
158 Vol. 34

the scope and purpose of that use.128 In addition to assigning these
students increased responsibility and accountability commensurate with
their age, the courts move away from allowing the infancy doctrine as a
defense in this age of digital adhesion contracts may also be due to an
adolescent's ability to use various other avenues to void a contract. 129
VII. OTHER AVENUES AVAILABLE FOR ADOLESCENTS TO VOID A
CONTRACT
While courts generally agree that the purpose of the infancy
doctrine is "to discourage adults from entering into potentially unfair
contracts with minors" because minors "lack the judgment and
experience to protect themselves,"130 even in the absence of this
doctrine, there are a number of avenues which an adolescent may
utilize to void a contract. Among these are misrepresentation, fraud,
undue influence, duress, unconscionability, and fair use.
A. MISREPRESENTA TJON OR FRAUD
Under contract law, a false or misleading statement made by one
party to another, which has the effect of inducing that party into a
contract, falls under the classification of either misrepresentation or
fraud depending on whether or not the statement was made or withheld
knowingly.131 A misrepresentation or fraudulent statement will render
a contract voidable at the option of the recipient of the
132
misrepresentation.
B. UNDUE INFLUENCE ORDURESS
Undue influence is the improper persuasion by one party used to
induce another party to enter into a contract; while duress is the use or
threatened use of harm made to compel a party to enter into a contract
against his will.133 Under contract law, the consent to a contract is
128. Id. at483.
129. See infra Part VII for a discussion of other avenues available to minors to void
contracts.
131. BLACK'S LAW DICTIONARY 300,461 (3rd Pocket ed. 2006).
132. Mistake, Misrepresentation,Duress, and Undue Influence, SANTA CLARA LAW,
http://law.scu.edu/FacWebPage/Neustadter/contractsebook/main/commentary/Mistake
MisrepDuress.html (last visited Nov. 25, 2012).
133. BLACK'S, supranote 131, at 230, 743.
2012 159

WHITTIER LAW REVIEW
voidable if the consent is obtained through undue influence or
duress. 134
C UNCONSCIONABILITY
Unconscionability is defined as the "absence of meaningful
choice on the part of one of the parties together with contract terms
which are unreasonably favorable to the other party."' 35 Pursuant to
the doctrine of unconscionability, an individual, regardless of age, may
render a contract unenforceable which is grossly unfair to one of the
parties.136 Under common law, an unconscionable contract is one that
is unjust or extremely one-sided in favor of the party who has the
superior bargaining power.137 The Uniform Commercial Code provides
that a "court may refuse to enforce a contract which it finds to be
unconscionable at the time it was made."1 38
D. UNFAIR OR DECEPTIVEACTS ORPRACTICES
A practice is unfair if it "causes or is likely to cause substantial
injury to consumers . . . which is not reasonably avoidable by
consumers themselves and . . . not outweighed by countervailing
benefits to consumers or to competition."' 39 Section 5 of the Federal
Trade Commission Act prohibits "unfair or deceptive acts or practices
in or affecting commerce."1 40 The Federal Trade Commission Act
enables the Federal Trade Commission to take action against unfair
trade practices.141
In light of the many other avenues available to adolescents to
render a contract voidable or unenforceable if it proves to be unduly
unfair to the minor, the infancy doctrine should be replaced with the
rule of sevens with respect to online adhesion contracts to reflect the
realities of modem contracting in the digital age. This would more
fairly treat adolescents with respect to online adhesion contracts where
they have the capacity to think and reason as an adult.
134. Id.at 743.
135. Williams v. Walker-Thomas Furniture Co., 350 F.2d 445,449 (D.C. Cir. 1965).
136. Id. at 448.
137. Id. at 449.
138. Id. at 448.
139. F.T.C. v. Accusearch, Inc., 570 F.3d 1187, 1193 (10th Cir. 2009).
140. 15 U.S.C. § 45(a)(1) (2006).
141. Id.
160 Vol. 34

VIII. CHANGING THE STANDARD OF A VOIDABLE CONTRACT
In keeping with those areas of law that distinguish between
children and adolescents and operate under a rebuttable presumption of
capacity,142 it is time for contract law to move into the 21st Century
and follow suit. A rule of sevens approach, similar to that utilized in
criminal law143 and negligence actions under tort law, 144 is the most
logical choice for contract law.
In utilizing such an approach under contract law, a young child
below the age of seven would be conclusively presumed incapable of
forming a contract as a matter of law; and between the ages of seven
and thirteen, a child would be presumed incapable of forming a
contract, although this presumption would be rebuttable and the burden
would be on the plaintiff to prove that the child has the capacity to
understand and appreciate the terms of the contract. An adolescent
beginning at age fourteen would conclusively be presumed capable of
entering into a contract and suffering the same consequences as an
adult if that contract is breached, although this presumption would also
be rebuttable and the burden would be shifted to the adolescent to
prove lack of capacity.
In order to illustrate how the rule of sevens would be applied to
minors in contract law, let's consider Thomas Suarez, the twelve-year-
old discussed in Section 11.145 In determining Thomas's capacity to
contract pursuant to the rule ofsevens, a court would presume that as a
child between the ages of seven and thirteen, he would be incapable of
forming a contract.1 46 However, a plaintiff would likely rebut this
presumption by providing evidence of Thomas's extraordinary
knowledge of computer programming, development of a number of
computer apps, and starting up a company under which to develop and
sell his apps to prove that he has the capacity to understand and
appreciate the terms of the contract. 147 Based on evidence, which
would be presented, a court wouid likely find that Thomas has the
capacity to contract, and would treat him as an adult with respect to any
contract he has entered into with the opposing party. This is a far
142. Rinella, supranote 72, at 480.
143. See id.
144. Id.
145. Tecca, supranote 37.
146. Cardwell,724 S.W.2d at 745.
2012 161

WHITTIER LAW REVIEW
superior method of determining an adolescent's capacity to contract
than the infancy doctrine, which instead would presume that he is
incapable of forming a contract until he reaches the age of majority.148
This approach would also be fairer to both parties to the contract, as
Thomas' extensive knowledge of computers, computer programming,
and business would likely put him in a superior position to any party
who may contract with him.149 Where an adolescent clearly has the
capacity to think and reason like an adult, he should be treated like an
adult with respect to online contracts he may engage in.
IX. CONCLUSION
The current standard of a voidable contract should reflect the
times in which we live, the rapidly changing technology, and the way
in which minors form online contracts on a daily basis. Contracts in the
digital age are no longer negotiated and agreed upon between the
parties in one or more face-to-face meetings, alternatively, they are
more often online adhesion contracts assented to with the click of a
mouse. A rule of sevens approach would be a superior method of
determining a minor's competence to contract in the digital age by
assigning increasing responsibility and accountability as he ages,
similar to the way he is treated in other areas of law.
KarenA. Shiffinan
* J.D. Candidate, Whittier Law School, 2014; M.A.S. Accounting & Taxation,
University of Illinois at Urbana-Champaign; B.A. Psychology, Northwestern
University. I dedicate this article to my parents for their love and support and their
encouragement to always be the best I can be. My deepest thanks to Professor
Rosenblatt for all of the advice, suggestions, and criticisms she provided throughout
my process of writing this article. Finally, a sincere thanks to the editors, members,
and staff of the Whittier Law Review for all of the hours they spent toward publishing
this article.
162 Vol. 34

Replacing the Infancy Doctrine_34WhittierLRev141

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Ähnlich wie Replacing the Infancy Doctrine_34WhittierLRev141

Ähnlich wie Replacing the Infancy Doctrine_34WhittierLRev141 (9)

Replacing the Infancy Doctrine_34WhittierLRev141