Infancy Doctrine Inquiries

34 Pages Posted: 5 Feb 2012 Last revised: 10 Jun 2015

See all articles by Cheryl B. Preston

Cheryl B. Preston

Brigham Young University - J. Reuben Clark Law School

Brandon T. Crowther

Preston & Scott, LLC

Date Written: February 3, 2012


In this developing information age, contract law is changing rapidly. The increasing quantity of digital interactions has led to a vast increase in the number and nature of contracts entered, as well as significant changes in the process of contracting. Clickwrap and browsewrap agreements are even more rarely read than traditional contracts and the terms tend to be more voluminous and onerous. Alongside these practices, the courts have been willing to lower the legal standards for recognizing assent to contractual terms and have become increasingly tolerant of oppressive terms.

At the same time, minors have vastly expanded access to money and are now a significant market segment. These recent trends in markets as well as in contract practice and law leave minors more exposed to potentially harmful or unfair terms. The infancy doctrine in contract law, the concept that minors' contracts are generally voidable, is their only viable protection.

Thus, this is a particularly appropriate time to shine a light on the infancy doctrine -- to determine what it includes and whether it needs adjustments. Although the infancy doctrine is well-established in American jurisprudence, even well-established legal doctrines should be periodically reexamined to determine if they still serve their intended purpose or have become a barrier to justice and efficiency. This Article briefly identifies the elements of the infancy doctrine and explores various critiques. It ultimately suggests that the infancy doctrine is necessary in some configuration to protect minors. Minors deserve the benefit of a safety net when navigating significant financial and legal commitments. The appropriate parameters of that net, however, need further tailoring.

Part I examines the elements, rationales, and policies behind the infancy doctrine, including the established exceptions and defenses. The discussion of various accurate and inaccurate applications and critiques of the infancy doctrine explored in Part I forms the foundation for a reassessment of the doctrine's role in a digital world. Part II explains the paucity of recent cases and solid commentary addressing the infancy doctrine, and then suggests what to expect of this doctrine in the future as the market activity of teens continues to expand. Finally, this Article concludes with how the infancy doctrine can be promoted and refined to continue to serve its still-legitimate purposes.

Keywords: Contracts, infancy doctrine, infancy defense, minors, voidable contracts, online contracts

Suggested Citation

Preston, Cheryl B. and Crowther, Brandon T., Infancy Doctrine Inquiries (February 3, 2012). Santa Clara Law Review, Vol. 52, pp. 47-80, 2012, Available at SSRN:

Cheryl B. Preston (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Brandon T. Crowther

Preston & Scott, LLC ( email )

111 E. Broadway, Suite 1200
Salt Lake City, UT
United States

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