Contractual Incapacity and the Americans with Disabilities Act

78 Pages Posted: 5 Mar 2019 Last revised: 24 Apr 2019

See all articles by Sean M. Scott

Sean M. Scott

Loyola Law School Los Angeles

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Date Written: February 26, 2019


The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement (“DRM”), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities Act. First, the doctrine reinforces stereotypes about people with mental disabilities, contributing to the negative social construction of disability. Second, it contributes to the social exclusion of people with mental disabilities, as the threat of contract rescission discourages commerce with people with mental disabilities. Third, the doctrine unjustifiably imposes a requirement of rationality upon transactions entered into by people with mental disabilities. Finally, the doctrine demeans people with disabilities by shielding them from the risk-taking that is an integral part of life.

To mitigate the harm caused by contractual incapacity I propose that the doctrine be restricted to people who were subject to a plenary guardianship when they entered into the contract. Such a restriction is an imperfect proposal, but it strikes a better balance between the rights of people with mental disabilities and the mental incapacity doctrine than currently exists.

Keywords: mental incapacity, disability rights, americans with disability act, contracts, mental disability

Suggested Citation

Scott, Sean M., Contractual Incapacity and the Americans with Disabilities Act (February 26, 2019). Dickinson L. Rev. (forthcoming), Loyola Law School, Los Angeles Legal Studies Research Paper No. 2019-05, Available at SSRN: or

Sean M. Scott (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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