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