§ 441. Capacity of parties. It is essential to the validity of a contract that the parties should have the capacity to contract; they must be of sound mind, of adequate age and under no legal disability. The following persons are incapacitated: Insane persons, drunkards, infants, persons under duress and alien enemies during war. In some of the states married women are still incapacitated from making contracts, but these harsh rules are yielding to the demands of an enlightened public opinion, which insists upon enlarging the sphere of a woman's rights and increasing her control over her own property.

§ 442. Who may make valid contracts.-Generally, all persons and corporations not disqualified by law may make valid contracts. And even infants and lunatics, who are under a general disability to assume obligations that may be enforced against them, may become bound to pay for the necessaries of life which may be supplied for their support. Sovereign states may enter contracts, but such contracts can not be enforced against them by suit without their consent. Where one state of the

Union has a claim against another state, it may sue upon it in the Supreme Court of the United States, which has exclusive jurisdiction of such controversies. Foreign states may make contracts and enforce them by suit in our courts. So aliens residing or trading here have the same right to make contracts and sue upon them as citizens, unless the right is restricted by treaty stipulations between their government and ours; in some states, however, they may not acquire title to land. An alien enemy, that is, a citizen of a nation with which we are at war, can make no contract or acquire any rights during war, unless by treaty between the belligerent powers the right is given. He may be sued on existing contracts, and unless a contract existing at the time of the war is of such a character that it is continuing in its nature and involves intercourse between the enemy countries, war will not destroy it. Where persons engaged in certain callings are required to have a license to carry on their avocations, the statutes of some states make their contracts void, unless they have such license.

§ 443. Infants.-An infant is a person under twenty-one years of age, and while under that age he can make no binding contract except in the following cases, that is: (1) For necessaries. (2) Contracts entered into by authority of law, as in the case of a recognizance in his own behalf. (3) Contracts created by law, as where an infant marries he is bound to support his wife. His other contracts are voidable; that is, the infant may ratify, perform or repudiate them at his option. According to the weight of authority he is not even bound by a contract under which he has received something of value which he can not return. Where a father has emancipated an infant by relinquishing his custody and refusing to maintain him, the infant may receive his 18-Elem. Law.

own earnings, but it does not enlarge his capacity to make contracts.

§ 444. Infant's contracts for necessaries.-What are the necessaries for the payment of which an infant may bind himself by contract? They include clothing, food, medical aid and education, and these must comport in quantity and quality with the infant's station in life. If he have a wife and children he is chargeable with necessaries supplied to them. An infant is not bound by the terms of his contract to pay for necessaries beyond a reasonable price for the articles.

If an infant were to buy a thing, not being a necessary, he could not be compelled to pay for it, but having paid for it he could not keep it and also recover back the money. If he has put money into a partnership, and has performed services in the business, he can not on rescinding the agreement get back his money and pay for his labor, too. The privilege of infancy is personal, and can only be pleaded by the infant himself; except that if he dies or becomes insane, his heirs, administrator or guardian may avoid his contracts.

§ 445. Ratification and disaffirmance by infants.An infant may disaffirm his contract during minority. If he retains the thing contracted for after he arrives at full age, it is a ratification of the contract. So, if he conveys land after his majority, which he purchased during his infancy, it is an affirmance. And if he has conveyed land during his infancy, and in his majority conveys the same land to another, the latter deed disaffirms the former. Where he elects to disaffirm, he must disaffirm the whole contract. There can be no ratification of a voidable contract during infancy, for the ratification would be voidable. Retaining after he arrives at majority

either goods or land purchased during his infancy makes the contract valid. Some states by their statutes require that a binding ratification of a contract made by an infant can only be made in writing.

§ 446. Fraud of infants.-If an infant procures goods of a tradesman on a false statement that he was of age the goods can be reclaimed on the ground of fraud. Sometimes courts of equity hold an infant to a contract that he has entered into under a false pretense as to his age. "The privilege of infancy is a shield for his protection and is not to be used as a weapon of injustice."

§ 447. Insane persons.-As a rule, the contracts of persons of unsound mind are not binding upon them. Unsoundness of mind, as here considered, is such a lack of mental capacity as totally unfits one for the care of his own interests. Of persons of sound mind the law takes no note of the grades of mental capacity between the highest and the lowest. When, however, from disease or any other cause the individual is or has become of unsound mind, as above indicated, he will not be held to his contracts, and those who deal with him do so at their peril. One who has been put under guardianship as a person of unsound mind is conclusively presumed to be so, and his estate can only be lawfully dealt with by his legally appointed guardian, who acts for him under the direction of the court. As to a person who has not been adjudged to be of unsound mind, the question of his mental capacity, when it is in issue, is to be tried as any other question of fact, the presumption in such cases being that every person is sane until the contrary is shown. It is not necessary here to go into a discussion of the different forms of insanity. We are here con

cerned only with that class of persons who in law are considered to be incapable of making valid contracts. Even a person of unsound mind may in exceptional cases, as an infant may, make binding contracts, that is, for necessaries suitable to his condition in life, and he will be held to his contract where he has dealt with one who in good faith supposes him to be sane, and has performed the contract by paying the consideration to him, if the consideration can not be restored.

§ 448. Drunkenness.-Where a person is so drunk at the time he makes a contract that he does not understand what he is doing, such contract is voidable, and may be repudiated or ratified by him when he becomes sober. The same exceptions hold good here as in the case of infants and persons of unsound mind. When a man gets sober he can not hold on to the benefits of a contract made when he was drunk, and repudiate the contract also. A drunken man, as an infant and lunatic, may make a valid contract for necessaries. Slight circumstances will be sufficient to ratify the contract of a drunken man. A delay in disaffirming it if unreasonable, or retaining the benefit after he becomes sober, will be a sufficient ratification.

§ 449. Married women.-By the common law married women could not make valid contracts. The extension of the rights of women in most of the states of the Union has practically emancipated them from the restraints of the common law. In nearly all the states they have the control and management of their separate estates, and as to such matters the married woman is put upon an equal footing with an unmarried woman, or with her husband. Nearly every session of our state legislatures witnesses some innovation upon the rules