Contracts: Defenses: [I] Incapacity/Defendant's Lack of Capacity

• Defendant’s lack of capacity
• Under 18; intoxicated; mentally incompetent
• Incapacitated defendant has the right to disaffirm (avoid) the contract.
• An incapacitated party can impliedly affirm a contract by retaining the benefit of the contract without complaint after gaining (or regaining) capacity.
• Plaintiff can enforce contract against incapacitated D if:
• D lacked capacity at time of agreement
• D gains/regains capacity
• D retains benefit of agreement without complaint.
• An incapacitated party is liable for necessaries (food, shelter, clothing, or medical care), but only on a quasi-contract basis.