Academic journal article The Virginia Magazine of History and Biography

By Birth or Consent: Children, Law, & the Anglo-American Revolution in Authority

Academic journal article The Virginia Magazine of History and Biography

By Birth or Consent: Children, Law, & the Anglo-American Revolution in Authority

Article excerpt

By Birth or Consent: Children, Law, & the Anglo-American Revolution in Authority * Holly Brewer * Chapel Hill: University of North Carolina Press, 2005 * xi, 390 pp. * $39.95

One of the bedrock principles of modern contract law is that a party will not be bound by an agreement unless he is capable of understanding the nature of his obligation. We presume that adults have sufficient intelligence and experience to give meaningful consent, and therefore we generally hold them to their bargains. Children, on the other hand, often lack the reasoning ability necessary for participation in that mystical moment, the so-called "meeting of the minds," when negotiation metamorphoses into contract, so we let them disavow most undertakings if they wish.

Until I read Holly Brewers provocative and wide-ranging book, I had assumed that the concept of minors' contractual incapacity dated back to the Middle Ages and the beginnings of the common law. She persuasively demonstrates, however, that the rule developed later, primarily in the seventeenth and eighteenth centuries, as part of a larger movement to substitute age for status as the dividing line between those who were deemed capable of doing certain things (e.g., contract, marry, testify, vote, hold office, commit crimes), and those who were not.

Before this conceptual shift, Brewer explains, birthright was the primary determinant of capacity. …

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