In England, at the common law, an infant's contract is binding upon him if it is for his benefit.2 This is also the law in Rhode Island;3 but the general rule in America is that an infant's contract is voidable by him whether beneficial or detrimental.4 Voidability should be distinguished, however, from voidness or invalidity. A void contract, accurately speaking, is not a contract, it is a legal nullity ab initio. A voidable contract is one which, by reason of some fact tending to prevent one of the parties from acting with due regard to his interest in making it,5 may be abrogated by him, but which until and unless it is abrogated subsists as a valid legal obligation. If infants lacked contractual capacity, as is frequently supposed, their contracts, like those of married women under the common law, would be void. As a matter of fact, and as is evidenced by their right to enforce their contracts if they choose, they have legal capacity; and it is by reason of a presumed mental incapacity to safeguard their own interests that they are permitted to escape by avoidance the consequences of their engagements. It follows: first, that any quasi contractual obligation which may rest upon one by reason of his own avoidance of a contract on the ground of infancy is an obligation to restore a benefit conferred in mis-reliance, not upon a void contract, but upon a contract unavailable because of avoidance; second, that any quasi contractual obligation that may rest upon one by reason of another's avoidance of a contract with him on the ground of infancy is an obligation to restore a benefit obtained by what may be termed a constructive fraud. Both of these obligations - i.e. that of the person who avoids and that of the other party - are fully treated in works on Persons and Domestic Relations and require no separate or extended consideration in this book. For the sake of convenience the law may be briefly summarized as follows:

1 For further comment on this case, see Keener, "Quasi-Contracts," pp. 336-40.

2 Clements v. London, etc., R. Co., [1894] 2 Q. B. 482; Stephens v. Dudbridge Ironworks Co., [1904] 2 K. B. 225. The common law rule has been largely altered by statute. See the Infants Relief Act, 1874, (37 & 38 Vict. c. 62).

3 Pardey v. American Ship Windlass Co., 1897, 20 R. I. 147; 37 Atl. 706; 78 Am. St. Rep. 844.

4 Cole v. Pennoyer, 1852, 14 111. 158; Fetrow v. Wiseman, 1872, 40 Ind. 148; Lemmon v. Beeman, 1888, 45 Ohio St. 505; 15 N. E. 476. For a collection of authorities, see 22 Cyc. 581, 582. For an exhaustive note, see 18 Am. St. Rep. 573.

5 Harriman, "Contracts," Sec. 399.

By the weight of authority an infant is not required to return the consideration received by him as a condition precedent to the avoidance of his obligation under a contract and the pleading of infancy in an action against him to enforce it.1 If, at the time of disaffirmance, however, he retains the consideration, he becomes liable to restore it,2 and such restoration is a condition precedent to the right to restitution from the other party.3 Indeed, in the case of the purchase of personal property by an infant, it is held that the title re-vests upon his disaffirmance Ill and that replevin may be maintained to recover it.1 On the other hand, if, at the time of disaffirmance, the infant has wasted or disposed of the consideration, he is not required to make restitution in value,2 the theory being that to compel restitution in such a case would be to deprive the infant of the protection which it is the policy of the law to afford him.

1 Shipley v. Smith, 1904, 162 Ind. 526; 70 N. E. 803; Chandler v. Simmons, 1867, 97 Mass. 508; 93 Am. Dec. 117; Craighead v. Wells, 1855,21 Mo. 404; Tiffany, "Persons," (2d ed.) Sec. 214. And see Simpson v. Prudential Ins. Co. 1903, 184 Mass. 348; 68 N. E. 673; 63 L. R. A. 741; 100 Am. St. Rep. 560.

2 Strain v. Wright, 1849, 7 Ga. 568; Price v. Furman, 1855, 27 Vt. 268; 65 Am. Dec. 194; Tiffany, "Persons," (2d ed.) Sec. 215.

3 MacGreal v. Taylor, 1897, 167 U. S. 688; 17 S. Ct. 961; Johnson v. Northwestern Mut. Life Ins. Co., 1894, 56 Minn. 365; 57 N. W. 934; 59 N. W. 992; 26 L. R. A. 187; 45 Am. St. Rep. 473; Lemmon v. Beeman, 1888, 45 Ohio St. 505; 15 N. E. 476.