This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Ratification is not the making of a new contract, but is an election by the infant between his two antagonistic rights of treating a pre-existing contract as void or valid, in favor of treating it as valid.1 No new consideration is therefore necessary,2 and on ratification the contract becomes valid from the validity of the contract depend on the acts of a minor who has the capacity to assent, but not the capacity to bind himself during minority; the right to enforce the contract depends on the acts of an adult who has no special incapacities nor privileges. When he exercises his option, which results from his contract made while a minor, to bind or not to bind himself by the contract to which he has assented, he stands as every one else stands in the performance of a voluntary act; he is presumed to know the law. So in the present case, the defendant knew he had, while a minor, agreed, for a fair consideration which he had received and enjoyed, to pay the amount in question to the plaintiff, and voluntarily, in specific terms, promised to pay that sum. This promise bound him to make the payment by force of the same law that exempted him from liability until the promise was made. It is immaterial whether he knew or did not know the law; if such knowledge could affect his act, he is charged with the knowledge, and cannot be permitted to show the contrary."Bestor v. Hickey, 71 Conn. 181, 186; 41 Atl. 555.
8 Harmer v. Killing, 5 Esp. 102; Tucker v. Moreland, 10 Pet. (U. S.) 59; Petty v. Roberts, 7 Bush. (Ky.) 410; Owen v. Long, 112 Mass. 403; Hinely v. Margaritz, 3 Pa. St. 428; Scott v. Buchanan, 11 Humph. (Tenn.) 468; Hatch v. Hatch, 60 Vt. 160; 13 Atl. 791.
1 The act of an infant in making valid his prior voidable contract is said to be "analogous either to a waiver or a ratification or a new contract. Such a promise is frequently indicated by all these names; they have been indifferently used in several of our decisions as terms of convenience and partial illustration, but it certainly cannot be accurately described by either." Bestor v. Hickey. 71 Conn. 181, 187; 41 Atl. 555.
2 American, etc., Co. v. Dykes, 111 date on which it was made, and not merely from the date of the ratification.3 Hence a deed when ratified prevails over a gratuitous conveyance of the same property made between the original deed and the ratification.4 A ratification once made without fraud, duress and the like is final, and the former infant cannot thereafter rescind.5 The proposition has been repeatedly advanced that a ratification, after suit was brought, is of no effect. The reason given is that "There must be a subsisting right of action at the time of suing out the plaintiff's writ, which right of action no subsequent promise can give."6 Evidently this reasoning misapprehends the real nature of ratification, and rests upon the fallacy that an infant's executory contract is of no effect until ratified.7 It is even said that a "promise cannot relate back . . . so as to make the original contract a good foundation for an action from the beginning."8 An examination of the cases usually cited in support of this proposition shows that in some it is a dictum, as there was no valid ratification at all, either before or after suit ;9 while in others it is apparently necessary to the decision.10 Even in some of the cases last cited it seems from somewhat in-- complete statements of fact that the facts relied on as a ratification occurred after a disaffirmance of liability by a plea of infancy.
Ala. 178; 56 Am. St. Rep. 38; 18 So. 292; Conklin v. Ogborn, 7 Ind. 553; Grant v. Beard, 50 N. H. 129.
3 American, etc., Co. v. Dykes, 111 Ala. 178: 56 Am. St. Rep. 38; 18 So. 292; Hall v. Jones, 21 Md. 439; Durfee ex rel. Lantz v. Abbott, 61 Mich. 471; 28 N. W. 521; Minock v. Shortridge, 21 Mich. 304; Tibbets v. Gerrish, 25 N. H. 41; 57 Am. Dec. 307; Hoit v. Underbill, 10 N. H. 220; 34 Am. Dec. 148; Harner v. Dipple, 31 O. S. 72; 27 Am. Rep. 496; Cheshire v. Barrett, 4 McCord. (S. C.) 241; 17 Am. Dec. 735.
4 Palmer v. Miller, 25 Barb. (N. Y.) 399.
5 Voltz v. Voltz, 75 Ala. 555; Mc-
Carthy v. Nicrosi, 72 Ala. 332; 47 Am. Rep. 418; Hastings v. Dollar-hide, 24 Cal. 195; Youmans v. Forsyth, 86 Hun (N. Y.) 370; Luce v. Jestrab, - N. D. - ; 97 N. W. 848.
6 Hale v. Gerrish, 8 N. H. 374. 375.
7 See Sec. 872.
8 Merriam v. Wilkins, 6 N. H. 432, 433; 25 Am. Dec. 472.
9 Thing v. Libbey, 16 Me. 55; Ford v. Phillips, 1 Pick. (Mass.) 202.
10 Freeman v. Nichols. 138 Mass. 313; Hale v. Gerrish, 8 N. H. 374; Merriam v. Wilkins, 6 N. H. 432; 25 Am. Dec. 472.