decided: September 19, 1973.
CENTRAL BUCKS AERO, INC., APPELLANT,
Appeal from order of Court of Common Pleas of Bucks County, Jan. T., 1971, No. 401, in case of Central Bucks Aero, Inc. v. John Henry Smith, a/k/a John Henry Smith, Jr., a/k/a John Henry Smith, III.
William L. Antheil, III, with him Chandor & Antheil, for appellant.
No oral argument was made nor brief submitted for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J.
[ 226 Pa. Super. Page 442]
This is an appeal from the granting of defendant-appellee's motion for summary judgment. The issue is whether we should overturn the longstanding common law doctrine that a minor by disaffirming a contract can avoid liability under the contract.
Appellee, when twenty years of age, leased an airplane from appellant. In the process of landing, appellee damaged the airplane beyond repair, and also damaged the landing field. After appellant filed suit in trespass, appellee disaffirmed the lease.
When a minor disaffirms a contract, unless the contract is for necessaries, the other party cannot recover the value of any item that the minor has obtained pursuant to the contract. The only remedy the other party has is an action in replevin to recover the item itself. If the minor no longer has the item, the other party is remediless. Gindin v. Silver, 430 Pa. 409, 243 A.2d 354 (1968). An action in trespass, which is the form of action selected by appellant, will not lie. As stated in
[ 226 Pa. Super. Page 443]
In cases such as Ayala and Flagiello, supra, the court was responding to an injustice; by removing the immunity in question the court extended protection to persons unable to protect themselves. No such situation is presented here. A businessman may protect himself from loss incident to a minor's disaffirmance of a contract by finding out whether the person with whom he is dealing is a minor. Ordinarily this will present no difficulty. If the person is a minor, or if it is not clear that he is an adult, the businessman may decline to deal with him, or may require that someone he knows is an adult join in the contract. Inasmuch as appellant neglected such precautions, it has only itself to blame for its inability to recover for the damage to its airplane and landing field.
Apart from these considerations, to overrule the cases that permit disaffirmance would involve the court in a legislative function. Some age must be established as the age below which disaffirmance will be permitted; perhaps a twenty year old person should not be protected, but surely an eight year old should be. If the age is to be changed, the legislature is better equipped than the court to decide whether the change should be to age 19, 18, 16, or some other age. (Indeed, the legislature has recently made this determination, selecting age 18. Act of June 16, 1972, P. L. 472, No. 151, § 1, 73 P.S. § 2021). In cases such as Ayala and Flagiello it was not necessary for the court to become involved in such legislative line drawing.
The order of the court below is affirmed.
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