ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, March 20, 2012

Old Enough to Facebook, Old Enough to Choose a Forum*

Facebooklike*See Andrew Schwartzarticle on the infancy doctrine and the CARD Act  

In a putative class action, plaintiffs brought a lawsuit against Facebook alleging that the social networking site violated their right of privacy by misappropriating their names and likenesses for commercial endorsements without their consent.  Plaintiffs, minors residing in Illinois, commenced the action in the Southern District of Illinois.  Facebook moved to transfer the case to the Northern District of California pursuant to a forum selection clause in Facebook’s terms of service.

Before addressing the validity of the forum selection clause, the court had to determine whether plaintiffs (minors) could disaffirm the clause under the infancy doctrine.  The court held that, because plaintiffs have used and continue to use Facebook, they could not disaffirm the forum selection clause.   The court reasoned:

The infancy defense may not be used inequitably to retain the benefits of a contract while reneging on the obligations attached to that benefit. *  * * Thus, “[i]f an infant enters into any contract subject to conditions or stipulations, the minor cannot take the benefit of the contract without the burden of the conditions or stipulations.” 5 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 9:14 (4th ed. 1993 & Supp. 2011) (collecting cases). California law is in accord with “the equitable principle that minors, if they would disaffirm a contract, must disaffirm the entire contract, not just the irksome portions.” Holland v. Universal Underwriters Ins. Co., 75 Cal. Rptr. 669, 672 (Cal. Ct. App. 1969). “[N]o person, whether minor or adult, can be permitted to adopt that part of an entire transaction which is beneficial, and reject its burdens. This commanding principle of justice is so well established, that it has become one of the maxims of the law . . . . [Minors] must either accept or repudiate the entire contract,” and “they cannot retain [the contract’s] fruits and at the same time deny its obligations.” Peers v. McLaughlin, 26 P. 119, 120 (Cal. 1891). “A party cannot apply to his own use that part of the transaction which may bring to him a benefit, and repudiate the other, which may not be to his interest to fulfill.” Id.

The court then held that the clause was valid and ordered the transfer of the case.

The lesson: a minor cannot accept the benefits of a contract and then seek to void it in an attempt to escape the consequences of clauses that minor does not like (especially when they “like” on Facebook).

E.K.D. v. Facebook, Inc., No. 11-461-GPM (S.D. of Ill. March 8, 2012) (Murphy, J.)

[Meredith R. Miller]

E-commerce, In the News, Miscellaneous, Recent Cases, Teaching, Web/Tech | Permalink

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Thanks for posting this, Meredith. Cheryl Preston has written a couple of interesting articles that are on the precise issue of the infancy doctrine and online contracts. You can find them here and here

Posted by: Nancy Kim | Mar 21, 2012 3:05:10 AM

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