What Constitutes Avoidance.

Avoidance or disaffirmance of a contract by a minor may be accom­plished by any expression of an intention to repudiate the contract. Any act inconsistent with the continuing validity of the contract is also a disaffir­mance. Thus, when a minor sold property to A and later, on reaching major­ity, made a sale of the same property to B, the second sale was an avoidance of the first.

Restitution by Minor after Avoidance.

ot When a minor avoids a contract, the question arises as to what must be returned by the minor to the party. her contracting

(a) Original Consideration Intact. When a minor still has what was received from the other party, the minor, on avoiding the contract, must re­turn it to the other party or offer to do so. That is, the minor must put things back to the original position, or as it is called, restore the status quo ante. If the minor who is able to return the consideration does not do so, the minor cannot avoid the contract. By virtue of this rule, when a contract is avoided, the minor must avoid all of it. Part of it cannot be kept.

(b) Original Consideration Damaged or Destroyed. What happens if the minor cannot return what has been received because it has been spent, used, damaged, or destroyed? The minor's right to avoid the contract is not affected thereby. The minor can still avoid the contract and is only required to return what remains. The fact that nothing remains or that what remains is damaged does not bar the right to avoid the contract. In those states which follow the common-law rule, the minor can thus refuse to pay for what has been received under the contract or can get back what had been paid or given, even though the minor does not have anything to return or returns any property in a damaged condition. There is, however, a trend which would limit this rule.

FACTS:

Kevin Green purchased an automobile from Star Chevrolet Company. He later notified Star thai he was a minor and was avoiding the contract. Star refused to take back the car and to refund the purchase price. Kevin continued to use the car. He was involved in a collision. His insurance company paid his claim and he transferred the car to the company. The com­pany later sold the car for salvage for $1500. Kevin sued Star for the price that he had paid for the car.

DECISION:

Kevin was entitled to the purchase price less $1500 representing the salvage value of the car. A minor may avoid a contract and recover whatever the minor has paid to the other party. If the minor still has what was received from the other patty, the minor must return it in whatevet condition it then is. Kevin should have returned the wrecked car to Star which then would have been able to make the salvage sale. This amount should therefore be deducted from the refund of the purchase price to which Kevin was entitled. (Star Chevrolet Co. v Green (Miss) 473 So 2d 157 (1985)]