It may be suggested, finally, as an explanation of the cases in question that the defence was from the outset defeasible in its nature; that is, that the law permitted the defendant to assert, within a proper time, his refusal to be bound by the transaction; that this privilege given by the law ceased either by the expiration of time or by any assertion by the defendant of his willingness to forego the defence or to perform the obligation in question. Such seems indeed to be the nature of the defence given to one induced by fraud to enter into a contract. Mistake and duress rest on similar grounds. The cases of contracts voidable for infancy, insanity, or intoxication may also be brought within the same class. Where the defence is of this nature it is not the new promise or ratification so called which gives rise to the right of action. Rather it is true that the defence or privilege given by the law never extended beyond permitting the defendant when apprised of the facts on which his rights depend to withdraw from the transaction. Accordingly a failure extending beyond a reasonable time to assert the privilege should be as effective as express ratification. As to transactions executed on one or both sides, the law supports this statement.25 As to transactions executory on both sides, it is probable that no action need be taken by the defendant until demand is made upon him for performance, and that he may then assert the defence of fraud, infancy, or other defence of the sort, though considerable time may have elapsed since the transaction was first entered into, and its nature discovered.26 But the revival of debts barred by bankruptcy, the Statute of Limitations, or the failure to charge a surety, cannot be explained in the same way. In these cases even though the transaction is executed on the part of the plaintiff the benefit of the transaction may be retained permanently without the defence being forfeited. The explanation therefore of a defeasible defence does not afford a satisfactory legal theory on which to rest the decisions enforcing new promises.
19See supra, Sec.181. 20Ibid.
21 Lechmere v. Fletcher, 1 Cr. & M. 623; Weare v. Chase, 58 N. H. 225.
22 See supra, Sec. 196.
24See supra, (185.
25 See infra, Sec. 1526. This is not fully true as to infanta, since an infant is excused from liability to perform his executory promise, when he has received during infancy property which be no longer has whan he reaches bis majority. See infra, Sec. 238; Catlin v.
Haddox, 49 Conn. 492, 601 n. 44 Am. Rep. 249. The same is presumably true of insanity. The exception in necessary in both cases for the protection of the privileged person. 26 See infra, Sec. 1526.