Misplaced Misrepresentations: Why Misrepresentation-of-Age Statutes Must Be Reinterpreted as They Apply to Children’s Online Contracts

The information age revolutionized the relationship between individuals and the internet. Today, children are the targets of online advertisements that lure them into accepting terms of service, thus entering into online agreements. While children may feel comfortable navigating websites, they are psychologically predisposed to be unsophisticated and impulsive actors online. Children lack the digital literacy to understand the implications of accepting website terms of service.Meanwhile, several states have misrepresentation-of-age statutes that prevent children from using the infancy doctrine to disaffirm online contracts because, in accepting the terms of service, children often represent that they are old enough to enter into the agreement. This Note argues that the heightened vulnerability of children online requires a reconsideration of the application of misrepresentation-of-age statutes to children's online contracts. To adequately balance the policy interests in protecting children against misrepresentation statutes' goal of preventing unknowing adults from being taken advantage of in the marketplace, this Note recommends that judges undertake a fact-specific, contextual inquiry of the online contract formation process.Introduction"That's the duty of the old . . . to be anxious on behalf of the young. And the duty of the young is to scorn the anxiety of the old."1This maxim could reflect the relationship between adults and children at any time throughout our history. Yet, in the modern digital era, some argue that children are technologically savvy, sophisticated consumers whose "noaccountability shield . . . allow[s] them to wreak havoc on the electronic commerce system with little or no legal consequences."2"No-accountability shield" refers to the infancy doctrine. Under the infancy doctrine, a child's contract is voidable,3 meaning that the transaction is per se valid, but a child can disaffirm the contract and avoid its legal obligations.4 Children5 lack the capacity to contract6 because they lack the ability to manifest the assent to a bargain required to incur contractual liability. 7 The long-accepted rationale behind the doctrine reflects society's general interest in protecting children: "It was thought that the minor was immature in both mind and experience; therefore, he should be protected from his own bad judgment as well as from adults who would take advantage of him."8 In essence, children cannot properly evaluate the benefits and risks of a contract and so are vulnerable to adults with more knowledge and bargaining power taking advantage of them in the marketplace.9 This notion that children are not fully capable of understanding the legal significance of their actions, and therefore should not be held responsible according to the same standards as adults, is mirrored elsewhere in the law.10Judicial and legislative exceptions and defenses have gradually qualified the infancy doctrine.11 Some of these exceptions, such as contracts for necessaries, contracts entered into by emancipated minors, and contracts for employment, reflect the reality that, in certain instances, children may actually need to enter into binding contracts.12 Others, most notably the misrepresentation- of-age13 and retained-benefit defenses,14 seek to provide adults who contract with children some protection when children try to disaffirm their contracts.15The myriad of exceptions and the uncertainty of their application in the modern contract era have leftthe infancy doctrine on ambiguous ground, especially with regard to the internet.16 The result has been a resurgence of legal scholarship analyzing the doctrine's relevance. One side argues that the sophisticated nature of commercial transactions, the commercial value and proportion of children who are online consumers, and the technological competence of children warrants abandoning the infancy doctrine.17 The other side contends that in an online environment, where the "processes of online contracting" rely on boilerplate terms of service and where the willingness of online service providers ("OSPs") to advertise to and contract with children "encourage[s] thoughtless and impulsive behavior," the infancy doctrine is more relevant than ever. …