(Ga. L. 1858, p. 58, § 1; Code 1863, §§ 2691, 2693; Code 1868, §§ 2687, 2689; Code 1873, §§ 2729, 2731; Code 1882, §§ 2729, 2731; Civil Code 1895, §§ 3647, 3648; Civil Code 1910, §§ 4232, 4233; Code 1933, § 20-201; Ga. L. 1966, p. 291, § 1; Ga. L. 1969, p. 640, § 1; Ga. L. 1972, p. 193, § 2; Ga. L. 2006, p. 141, § 3/HB 847; Ga. L. 2013, p. 294, § 4-3/HB 242.)
The 2013 amendment, effective January 1, 2014, substituted "Article 10" for "Article 6" in the last sentence of subsection (a) and near the end of subsection (b). See Editor's notes for applicability.
Code Commission notes.- Ga. L. 1972, p. 193, § 10, effective July 1, 1972, provided that the purpose of the Act was to reduce the age of legal majority from 21 years of age to 18 years of age so that all persons, upon reaching the age of 18, would have the rights, privileges, powers, duties, responsibilities, and liabilities previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed to have the effect of changing the age from 21 to 18 with respect to any legal instrument or court decree in existence prior to the effective date of the Act when the instrument referred only to "the age of majority" or words of similar import, except that any guardianship of the person or property of a minor under the provisions of Title 49 of the 1933 Code, whether such guardianship was created by court order or decree entered before or after the effective date of the Act or under the will of a testator which was executed after the effective date of the act, would terminate when the ward for whom such guardianship was created reached 18 years of age.
History of section.
- This Code section is derived from the decision in Strain v. Wright, 7 Ga. 568 (1849), and Hood v. Buren, 33 Ga. App. 203, 125 S.E. 787 (1924).
Cross references.- Rights of minors generally, § 1-2-8.
Minority as a contractual defense, § 13-5-3.
Voidable nature of conveyance of property or interest to or by minor, § 44-5-41.
Editor's notes.- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."
Law reviews.- For article discussing, "Voidability of Minors' Contracts: A Feudal Doctrine in a Modern Economy," see 1 Ga. L. Rev. 205 (1967). For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article discussing the anachronistic nature of the Georgia contracts Code as dramatized by comparing the doctrine of consideration as it is formulated in the Restatements of Contracts and in Code 1933, Title 20 (now this title), and the interpretative approach Georgia courts have taken in dealing with such Code, see 13 Ga. L. Rev. 499 (1979). (But see amendments by Ga. L. 1981, p. 876.) For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 79 (2006).
JUDICIAL DECISIONSANALYSIS
Minor's contract is not void, but voidable, at minor's election when arriving at full age. Clemons v. Olshine, 54 Ga. App. 290, 187 S.E. 711 (1936).
Contracts of infants are voidable and may be ratified or rescinded upon maturity. Smith v. Smith, 36 Ga. 184, 91 Am. Dec. 761 (1867); Hood v. Duren, 33 Ga. App. 203, 125 S.E. 787 (1924); Levy v. McPhail, 33 Ga. App. 784, 127 S.E. 793 (1925).
Infant can pursue infant's rights even as against innocent purchaser.
- To give vitality to doctrine that infant is incapable of irretrievably alienating the infant's property, it is necessary to hold that the infant can pursue the infant's rights even as against an innocent purchaser. Ware v. Mobley, 190 Ga. 249, 9 S.E.2d 67 (1940).
Former Code 1933, §§ 20-201 and 29-106 (see O.C.G.A. §§ 13-3-20 and44-5-41) should be construed in pari materia with former Code 1933, § 29-106 (see O.C.G.A. § 44-5-41). Merritt v. Jowers, 184 Ga. 762, 193 S.E. 238 (1937).
Former Code 1933, §§ 20-201 and 29-106 (see O.C.G.A. §§ 13-3-20 and44-5-41), which contains declaration that deed of infant was voidable at infant's pleasure on majority, should be construed in pari materia. Ware v. Mobley, 190 Ga. 249, 9 S.E.2d 67 (1940).
Infants generally lack ability to bind themselves by commercial papers.
- Generally, infants by reason of their inability to make valid contracts, except for necessities, do not possess requisite legal capacity to bind themselves by commercial papers. Such instruments, however, are not absolutely void but are only voidable and are capable of being rendered binding by being ratified and affirmed by them after attaining majority. Howard v. Simpkins, 70 Ga. 322 (1883).
Broad statement that minor cannot make contract without consent of parent or guardian is erroneous. Royal v. Grant, 5 Ga. App. 643, 63 S.E. 708 (1909).
Mere fact that minor has neither parent nor guardian does not remove minor's disability and clothe the minor with power to contract generally. Wickham v. Torley, 136 Ga. 594, 71 S.E. 881, 36 L.R.A. (n.s.) 57 (1911).
Minor misrepresenting age and incapable of making restitution, denied infancy defense unless creditor on notice.
- Where infant obtains from merchant clothing on credit on faith of false representation of age, and consumes or uses the clothing to injury of creditor, infant, in an action on open account against the creditor, will be estopped from setting up creditor's infancy as a defense. Unless youthful appearance of infant purchaser or other fact or circumstances appear, such as would reasonably tend to cast doubt or suspicion on truthfulness of infant's representation as to infant's majority, it is unnecessary for creditor to make independent investigation thereof. Clemons v. Olshine, 54 Ga. App. 290, 187 S.E. 711 (1936).
Minor estopped from exercising privilege of avoiding fair and reasonable contract upon ground of minority at time agreement was made, where it appears that the minor has received, enjoyed, and consumed its irrestorable benefits, and, where it appears that plaintiff, dealing in good faith, was induced to act to plaintiff's injury by reason of false and fraudulent misrepresentation of defendant with respect to defendant's apparent majority, and that, in view of all surrounding facts and circumstances, plaintiff was justified in accepting such representation as true, and was free from fault or negligence, such as a failure to use all ready means of ascertaining truth touching the defendant's apparent majority. Carney v. Southland Loan Co., 92 Ga. App. 559, 88 S.E.2d 805 (1955).
Defendant cannot avoid fair and reasonable contract upon ground of defendant's minority at time agreement was made, where it appears that defendant received, enjoyed, and consumed its irrestorable benefits; and where it appears that plaintiff, dealing in good faith and being free from negligence, was induced to act to plaintiff's injury by reason of the false and fraudulent representation of defendant with respect to defendant's apparent majority. Hood v. Duren, 33 Ga. App. 203, 125 S.E. 787 (1924).
Guardian suing to recover property sold by infant ward is entitled to possession unconditionally.
- Statute inapplicable to suit brought by guardian to recover possession of personal property which an infant ward has sold and delivered. Guardian is entitled to possession of such property unconditionally. Hughes v. Murphy, 5 Ga. App. 328, 63 S.E. 231 (1908).
Contracts with minors voidable.
- Minor's exemption under O.C.G.A. § 13-5-3 from contractual liability is a personal privilege which others may not assert as a defense; binding settlement agreement was reached between an insurer and a minor injured party even though: (1) a contract of a minor is voidable under O.C.G.A. § 13-3-20(a); (2) judicial approval pursuant to O.C.G.A. § 29-2-16(e) postdated the settlement agreement; and (3) no guardian had been appointed for the minor at the time the agreement was reached. Grange Mut. Cas. Co. v. Kay, 264 Ga. App. 139, 589 S.E.2d 711 (2003).
Withdrawal of guilty plea by minor.
- By failing to make the argument in the trial court, the defendant waived the argument that because aspects of contract law apply to plea negotiations, the defendant's guilty plea was voidable as a matter of law pursuant to O.C.G.A. § 13-3-20, which provides, in pertinent part, that "generally the contract of a minor is voidable." Boykins v. State, 298 Ga. App. 654, 680 S.E.2d 665 (2009).
Cited in Howard v. Simkins, 70 Ga. 322 (1883); Shuford v. Alexander, 74 Ga. 293 (1884); McKamy v. Cooper, 81 Ga. 679, 8 S.E. 312 (1888); Medders v. Baxley Banking Co., 17 Ga. App. 730, 88 S.E. 407 (1916); Sellers v. Sellers, 160 Ga. 516, 128 S.E. 659 (1925); New York Life Ins. Co. v. Gilmore, 40 Ga. 431, 149 S.E. 799 (1929); Paulk v. Roberts, 42 Ga. App. 79, 155 S.E. 55 (1930); Pendley v. Bennett, 42 Ga. App. 596, 157 S.E. 250 (1931); Parks v. Harper, 43 Ga. App. 269, 158 S.E. 454 (1931); McIntyre v. Ragan, 179 Ga. 360, 175 S.E. 795 (1934); Stephens v. Wilson, 58 Ga. App. 24, 197 S.E. 350 (1938); Rourke v. U.S. Fid. & Guar. Co., 187 Ga. 636, 1 S.E.2d 728 (1939); Holland v. Peerless Furn. Co., 60 Ga. App. 149, 3 S.E.2d 138 (1939); Carney v. Southland Loan Co., 92 Ga. App. 559, 88 S.E. 805 (1955); Greer v. Greer, 218 Ga. 416, 128 S.E.2d 51 (1962); Jackson v. Mitchell Motors, Inc., 123 Ga. App. 261, 180 S.E.2d 605 (1971); Security Dev. & Inv. Co. v. Ben O'Callaghan Co., 125 Ga. App. 526, 188 S.E.2d 238 (1972).
Disaffirmance or Repudiation
Option to disaffirm contract is personal to minor.
- Minor is generally under a disability to contract, but contract is not ipso facto void and option to disaffirm is personal to the minor. Jones v. State, 119 Ga. App. 105, 166 S.E.2d 617 (1969).
Infant's contracts regarding personalty avoidable, whether executed or executory, during minority or after majority. Weathers v. Owen, 78 Ga. App. 505, 51 S.E.2d 584 (1949).
Infant may repudiate voidable contracts during minority or within reasonable time thereafter.
- Contract of infant, except for necessaries, being voidable, may be repudiated by infant either during minority or within reasonable time thereafter. Wellborn v. Rogers, 24 Ga. 558 (1858); Bentley v. Greer, 100 Ga. 35, 72 S.E. 974 (1896); Bell v. Swainsboro Fertilizer Co., 12 Ga. App. 81, 76 S.E. 756 (1912); Clyde v. Steger & Sons Piano Mfg. Co., 22 Ga. App. 192, 95 S.E. 734 (1918); Levy v. McPhail, 33 Ga. App. 784, 127 S.E. 793 (1925).
Reasonable time for disaffirmance after majority depends on circumstances, but is less than seven years.
- Infant may disaffirm the deed within reasonable time after attaining majority; and if the infant fails to do so, right of avoidance on the ground of infancy will be lost. What is a reasonable time will depend upon facts of each case, but not be longer than seven years after disability is removed. Nathans v. Arkwright, 66 Ga. 179 (1880); McGarrity v. Cook, 154 Ga. 311, 114 S.E. 213 (1922); Holbrook v. Montgomery, 165 Ga. 514, 141 S.E. 408 (1928).
Restitution not condition precedent to disaffirmance unless fruits of contract in infant's possession at time.
- While an infant should not be allowed to avoid the infant's contract without making restitution of any money or property which the infant has received under the contract, the infant is not required to make restitution as condition precedent to disaffirmance, unless at time of attempted disaffirmance the infant has fruits of contract in the infant's possession. Shuford v. Alexander, 74 Ga. 293 (1884); Southern Cotton Oil Co. v. Dukes, 121 Ga. 787, 49 S.E. 788 (1905); Hughes v. Murphy, 5 Ga. App. 328, 63 S.E. 231 (1908); Gonackey v. General Accident, Fire & Life Assurance Corp., 6 Ga. App. 381, 65 S.E. 53 (1909); Holbrook v. Montgomery, 165 Ga. 514, 141 S.E. 408 (1928); Merritt v. Jowers, 184 Ga. 762, 193 S.E. 238 (1937); Weathers v. Owen, 78 Ga. App. 505, 51 S.E.2d 584 (1949).
It is not essential to right of infant to disaffirm contract in settlement of claim for personal injuries that the infant restore or offer to restore to other contracting party whatever consideration infant may have received for contract unless infant has not consumed or dissipated such consideration, and is able to make restitution. Tharpe v. Cudahy Packing Co., 60 Ga. App. 449, 4 S.E.2d 49 (1939).
No attempted repudiation of liability under voidable contract can be effective unless accompanied by surrender of such property acquired thereunder as may still remain in minor's hands. Minor cannot hold property and make use of property's possession as basis of further negotiation. Thomason v. Phillips, 73 Ga. 140 (1884); Clyde v. Steger & Sons Piano Mfg. Co., 22 Ga. App. 192, 95 S.E. 734 (1918).
If infant has lost, expended, or squandered consideration during infant's minority, this is nothing more than law anticipates of the infant. Otherwise rule would practically strike down shield which law, by reason of infant's inexperience and youth, throws around the infant. White v. Sikes, 129 Ga. 508, 59 S.E. 228, 121 Am. St. R. 228 (1907); Medders v. Baxley Banking Co., 17 Ga. App. 730, 88 S.E. 407 (1916). But see Hood v. Duren, 33 Ga. App. 203, 125 S.E. 787 (1924).
If, after majority, property is held into which contract proceeds traceable, repudiation without restitution disallowed.
- If, upon arrival at majority, minor has in minor's possession either exact consideration that minor received during infancy or any substantial part of same, or property which is purchased with such consideration, that is, if minor has then anything of substantial nature into which can be traced proceeds of contract made during infancy, then neither law, equity, nor good conscience will permit the minor to repudiate the minor's contract and retain fruits of the contract. White v. Sikes, 129 Ga. 508, 59 S.E. 228, 121 Am. St. R. 228 (1907).
Minor may disaffirm signature on surety contract to secure parent's loan despite fact that loan proceeds flow directly into operating budget of home. Martin v. National Bank, 236 Ga. 621, 225 S.E.2d 10 (1976).
Infant, upon reaching majority, may disaffirm deed even against subsequent bona fide purchaser.
- One who while an infant executes deed to real property may in proper case, upon reaching majority, disapprove the act, not only as against the infant's immediate grantee, but also as against a subsequent bona fide purchaser. Ware v. Mobley, 190 Ga. 249, 9 S.E.2d 67 (1940).
Institution of suit by infant for personal injury amounts to disaffirmance of previous settlement.
- Contract by which infant receives and accepts money in satisfaction and settlement of claim which infant may have for damages against another for personal injuries is voidable and may be disaffirmed by infant; institution or maintenance by infant of suit against other contracting party to recover damages for injuries sustained amounts to disaffirmance of such contract. Tharpe v. Cudahy Packing Co., 60 Ga. App. 449, 4 S.E.2d 49 (1939).
Contract waiving all claims held inadmissible.
- Trial court did not err when the court refused to admit at trial an agreement signed by a 14-year-old unaccompanied by any parent or guardian, which was tendered by the defendant for the sole purpose of enabling the jury to determine whether the child had waived all claims against the defendant. Smoky, Inc. v. McCray, 196 Ga. App. 650, 396 S.E.2d 794 (1990).
To enforce disaffirmance of contract during minority infant may sue through guardian or next friend. Gonackey v. General Accident, Fire & Life Assurance Corp., 6 Ga. App. 381, 65 S.E. 53 (1909).
Infant may enforce disaffirmance by cross action or plea in recoupment when sued upon infant's contract. Levy v. McPhail, 33 Ga. App. 784, 127 S.E. 793 (1925).
Plea of infancy manifests intent to repudiate and is binding upon infant.
- Obligation or other deed of infant shall be avoided by plea of infancy, such plea, when made, is voluntary, manifesting infant's intention to repudiate contract, and is therefore binding upon the infant. Strain v. Wright, 7 Ga. 568 (1849).
Ratification
Ratification may be express or implied by conduct.
- Contract made by one during minority may be ratified and confirmed by the minor after reaching majority, either expressly or impliedly by conduct. Yancey v. O'Kelley, 208 Ga. 600, 68 S.E.2d 574 (1952).
Retention after majority of fruits of contract made during infancy may amount to ratification. Wickham v. Torley, 136 Ga. 594, 71 S.E. 881, 36 L.R.A. (n.s.) 57 (1911); Bell v. Swainsboro Fertilizer Co., 12 Ga. App. 81, 76 S.E. 756 (1912).
Retention, after attaining majority, or consideration received under contract, is binding ratification.
- If infant receives property or other valuable consideration, and after arrival at age retains possession of such property, or enjoys proceeds of such valuable consideration, such ratification of contract shall bind the infant. Holbrook v. Montgomery, 165 Ga. 514, 141 S.E. 408 (1928).
Omission to pay back purchase money after majority not ratification where benefits not retained.
- After infant enters into executory contract for sale of land, receives purchase price and expends the money, and, after attainment of majority, has neither money nor other property in which the money may have been invested, mere fact of the infant's omission, upon arriving at majority, to tender back purchase money will not amount to ratification of contract nor prevent election to disaffirm sale. White v. Sikes, 129 Ga. 508, 59 S.E. 228, 121 Am. St. R. 228 (1907).
Ratification may occur although consideration destroyed during minority and no new consideration received.
- Even where consideration received by infant has been consumed or destroyed by the infant during infancy, if, after arriving at majority, the infant expressly ratifies contract and promises performance, the infant is bound, although the infant received no new consideration. Bell v. Swainsboro Fertilizer Co., 12 Ga. App. 81, 76 S.E. 756 (1912).
Showing required to establish ratification.
- One seeking to hold infant bound upon contract, for reason that consideration was retained after arrival at majority, has imposed upon the infant burden of showing possession of consideration after majority and retention for sufficient length of time that ratification of contract is to be inferred. Medders v. Baxley Banking Co., 17 Ga. App. 730, 88 S.E. 407 (1916).
Contracts for Necessaries
Minor may under some conditions be liable on executed contract for necessaries. Jernigan v. Radford, 182 Ga. 484, 185 S.E. 828 (1936).
Infant bound by implied contract to pay reasonably for necessaries furnished infant. Mauldin v. Southern Shorthand & Bus. Univ., 3 Ga. App. 800, 60 S.E. 358 (1908).
Negotiable instrument given by infant for necessities or pursuant to trade or profession is not voidable.
- If a negotiable instrument is given for necessities or to secure funds to educate an infant, it will not be voidable; and if an instrument is given in performance of practice of a profession, vocation, or trade, it will not be voidable. James v. Sasser, 3 Ga. App. 568, 60 S.E. 329 (1908).
Minor cannot bind oneself by executory contract for necessaries. White v. Sikes, 129 Ga. 508, 59 S.E. 228, 121 Am. St. R. 228 (1907); Mauldin v. Southern Shorthand & Bus. Univ., 3 Ga. App. 800, 60 S.E. 358 (1908).
Affirmative refusal by parent or guardian to furnish necessaries need not be shown. McLean v. Jackson, 12 Ga. App. 51, 76 S.E. 792 (1912).
Infant's contract for necessaries invalid unless parent or guardian refuses and fails to supply sufficient necessaries. McAllister v. Gatlin, 3 Ga. App. 731, 60 S.E. 355 (1908), criticized, McLean v. Jackson, 12 Ga. App. 51, 76 S.E. 792 (1912).
What are necessaries.
- See McLean v. Jackson, 12 Ga. App. 51, 76 S.E. 792 (1912); Geiger v. Worth, 17 Ga. App. 361, 86 S.E. 938 (1915).
What are necessaries for infant is question for determination by jury, according to circumstances and condition in life of infant. McLean v. Jackson, 12 Ga. App. 51, 76 S.E. 792 (1912); Geiger v. Worth, 17 Ga. App. 361, 86 S.E. 938 (1915).
Medical expenses incurred by reason of injury are necessaries. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937).
Dentist may recover of minor value of services necessary for preservation of minor's health. McLean v. Jackson, 12 Ga. App. 51, 76 S.E. 792 (1912).
Guardian must pay preappointment debts for necessaries incurred by infant regardless of estate's size.
- If, before appointment of guardian, debts for necessaries be incurred by infant, guardian, after the guardian's appointment, must pay the debts out of the infant's estate, even though that estate be so small that annual profits of it may not be sufficient for infant's education and maintenance. Jernigan v. Radford, 182 Ga. 484, 185 S.E. 828 (1936).
RESEARCH REFERENCES
Am. Jur. 2d.
- 23 Am. Jur. 2d, Deeds, § 133.
C.J.S.- 17 C.J.S., Contracts, § 98.
ALR.
- Ignorance of legal right to avoid contract or conveyance made during infancy as affecting ratification thereof upon attaining majority, 5 A.L.R. 137.
Parent's approval or sanction of infant's contract as affecting latter's liability on, or right to disaffirm, it, 9 A.L.R. 1030.
Right of infant to enjoin other party to contract from asserting its validity, 15 A.L.R. 1215.
Return of property purchased by infant as condition of recovery of purchase money paid, 16 A.L.R. 1475; 36 A.L.R. 782; 124 A.L.R. 1368.
Stipulations in pass as binding on infant, 41 A.L.R. 1099.
Infancy of party to contract as affecting his right to specific enforcement, 43 A.L.R. 120.
Law of infant's contract as applied to contract of or by partnership, 58 A.L.R. 1366.
Payment by infant after majority on contract made during infancy as ratification, 59 A.L.R. 281.
Infant's rights and liabilities on subscription to or purchase of corporate stock, 64 A.L.R. 972.
Right to recover for money loaned to infant to purchase necessaries, 65 A.L.R. 1337.
Liability of infant in tort for inducing contract by misrepresenting his age, 67 A.L.R. 1264.
Liability of infant or his estate for rent, 68 A.L.R. 1185.
Liability of infant for necessaries where he lives with his parents, 70 A.L.R. 572.
Liability of infant for medical, dental, or hospital services to him, 71 A.L.R. 226.
Law of infant's contracts as applied to infant's dealings with stockbroker, 83 A.L.R. 914.
Return of property purchased by infant as condition of recovery of purchase price, 124 A.L.R. 1368.
Enlistment or mustering of minors into military service, 137 A.L.R. 1467; 147 A.L.R. 1311; 148 A.L.R. 1388; 149 A.L.R. 1457; 150 A.L.R. 1420; 151 A.L.R. 1455; 151 A.L.R. 1456; 152 A.L.R. 1452; 153 A.L.R. 1420; 153 A.L.R. 1422; 154 A.L.R. 1448; 155 A.L.R. 1451; 155 A.L.R. 1452; 156 A.L.R. 1450; 157 A.L.R. 1449; 157 A.L.R. 1450; 158 A.L.R. 1450.
Failure to disaffirm as ratification of infant's executory contract, 5 A.L.R.2d 7.
Right of infant to disaffirm his sale of personalty and recover it from third person purchasing without notice of infancy, 16 A.L.R.2d 1420.
Right of infant who repudiates contract for services to recover thereon or in quantum meruit, 35 A.L.R.2d 1302.
Applicability of statute of frauds to promise to pay for medical, dental, or hospital services furnished to another, 64 A.L.R.2d 1071.
Agreement to arbitrate future controversies as binding on infant, 78 A.L.R.2d 1292.
Infant's liability for use or depreciation of subject matter, in action to recover purchase price upon his disaffirmance of contract to purchase goods, 12 A.L.R.3d 1174.
Infant's liability for services rendered by attorney at law under contract with him, 13 A.L.R.3d 1251.
Enforceability of covenant not to compete in infant's employment contract, 17 A.L.R.3d 863.
Infant's misrepresentation as to his age as estopping him from disaffirming his voidable transaction, 29 A.L.R.3d 1270.
Infant's liability for services of an employment agency, 41 A.L.R.3d 1075.
Automobile or motorcycle as necessary for infant, 56 A.L.R.3d 1335.
Infant's liability for medical, dental, or hospital services, 53 A.L.R.4th 1249.