Contract Law: The Best Way to Stop Children from Fighting During Covid-19
I can pinpoint the moment that contract law became alive and well in our home. I bring to you the unaltered facts.* It was April 8, the day following my youngest daughter’s birthday. My eldest child, herein referred to as the Defendant, was beaming with pride over the acquisition of legos, toys and unopened birthday presents. My youngest daughter, aka the birthday girl and herein referred to as the Plaintiff, held a single stick of gum. Had there been some sort of exchange? Both parties were alive and smiling, seemingly satisfied. For the moment.
Approximately 1 minute later, shouting and footsteps came tearing down the hall. “Give it back! It was only to borrow!” Both lead singers tore into their solos, fighting for the spotlight. All of this followed by, “Mama!”
Normally, I might have internally rolled my eyes, let out a deep exhale and proceeded to break up another fight. But something was different this time. Words from my dusty, old, red contracts book began swirling in the air. Exchange of goods? Agreement? Meeting of the minds? This was classic textbook stuff! I rolled up my sleeves. Lawyer mom was to the rescue.
Now you might wonder if this information is only relevant for attorneys. But have your children’s fights become background noise during the pandemic? Maybe there’s one brewing over a disputed toy this very moment. Parenting magazines might offer you a 1–2–3 step solution with leftover time for designer origami crafts. As a lawyer mom, I instead welcome you to this crash course in contracts. No legal background necessary. The goal is not to distinguish between unilateral contracts and conditional gifts but rather to equip you with some parenting magic. There is a new way to solve problems in your home — with satisfied children and long-lasting peace treaties. Let’s first dig in and learn about enforceable contracts.
We routinely enter into contracts outside the home — when accepting a job offer, purchasing software and signing lease agreements. A contract is just a fancy term used to describe a set of promises between people. We use contracts to make sure that both parties can fairly and freely make the best decision for themselves, without wrongful interference.
When does a contract become legally enforceable? Both parties must consciously intend to enter the agreement. There must also be consideration, something of value offered between both parties. An offer made must be accepted. Both parties also establish a psychic connection; they undergo an out of body experience as their minds high-five each other in the air. You might instead hear it referred to as a “meeting of the minds.” There’s also an issue of capacity — you can’t be mentally impaired or a minor.
If you’re paying attention, you might have just noticed that minors generally can’t enter into legally enforceable contracts on their own behalf. Children’s brains are still developing, and we shouldn’t hold them to adult expectations. But, we certainly can embrace contractual principles to solve problems between our minor children. Additionally, kids can learn about fairness and equity from an early age. Since using negotiations and contracts with my own children, I have noticed a profound change in their logic abilities. Most importantly, sibling rivalries have gone way down!
Now let’s continue to unpack how this all went down. I first physically separated the Plaintiff and Defendant, ignoring all allegations and plain view evidence of assault. The contract was the singular matter at hand. A criminal tribunal would handle the other matters. I seated the parties on opposite sides of the hallway — an impartial venue. Then, I gave the Plaintiff and Defendant an opportunity to make their cases.
There was no four-cornered document to reference. Without a written instrument, I would need to rely on any oral agreements. There had also been no witnesses to the incident. The middle sister did offer support to both parties. However, the middle sister was promptly dismissed as she could only offer inadmissible character testimony. Neither Plaintiff nor Defendant had personal phones or emails, leaving no trace of written messages to examine.
Unsurprising to any parent out there, two wildly different stories emerged about “the agreement,” giving indication that there was no meeting of their minds. But, key details also surfaced. First, testimonies corroborated that without the exchange, the Plaintiff would be excluded from future games. Could this be a threat? What would a reasonable four-year-old have done under the circumstances? Second, the gum had a bite mark in it. Did gum come with an implied warranty of being unchewed? Finally, would any child in their right mind trade new birthday presents for gum? I suppose we all know the answer to that question.
The holding in Paarlberg v. Paarlberg is that the verbal contract was void ab initio on the basis of duress, i.e., the threat of exclusion. Since the contract never happened, all items were returned to the original owners. The most important result came with policy changes. Any future exchange of goods or services between minors must be accompanied by a written, enforceable contract, notarized by a parent and written in pen, crayon or marker. Pencil can be easily tampered when nobody’s looking. All disputed matters are resolved before the non-notary parent.
Accountants and financiers, you might wonder about recordkeeping obligations. You can personalize your own statute of limitations without regard for state law. Ours have a one-week shelf life, after which the shredder is fair game. Typically, the traded items are long missing under a forgotten pile of toys by then. We may revisit records as the children get older, and items are more valuable. For children possessing an elephant’s memory, you might consider investing in a file cabinet adjacent to your tax records, color coded by child. A matching Excel sheet to track and locate files might help access documents more quickly during a dispute.
Feeling pumped? Diplomacy, fair negotiations and contracts have minimized the bickering in our home. In fact, exchanges made under written contract have resulted in zero fights. Reflecting on intentions, benefits and fairness before making a promise can go a long way. We still have the odd fight when exchanges are not reduced to writing. But, thoughtfulness now underlies most of these child-centered decisions. So before you encounter the next outburst, give your new parental magic a try. You might be pleasantly surprised.
*Some facts and circumstances may have been changed or exaggerated for demonstrative purposes.
