Total mental incapacity precludes contract, sec 98.

By early authorities lunacy not generally ground for avoidance, sec 99.

Subsequent tendency to hold such contracts void, sec 100.

Exception as to necessaries, sec 101.

Prevalent view now is that where there is capacity there is liability; but that contract is voidable when made with party with notice, sec 102.

Question conditioned by fraud, sec 103.

And by undue influence, sec 104.

Notice to be inferred from facts, sec 105.

Contracts bind when fair and beneficial, sec 106.

Exception as to deeds, sec 107.

Lunatic may take title, sec 107 a.

And may transfer title and may endorse, sec 108.

Business capacity restored in lucid intervals, sec 109.

Monomania does not avoid contracts on other topics, sec 110.

On rescinding contract parties to be placed in statu quo, sec 111.

Partnership contracts of lunatics voidable, sec 112.

Distinctive rule as to marriage contracts, sec 113.

Distinctive rule as to divorce, sec 113a.

Party may himself avoid contract on ground of mental incompetency, sec 114.

And so of his administrator, sec 115.

And so of guardian and assignee, sec 116.

Other contracting party cannot avoid, sec 117.

Non-repudiation may be ratification, sec 117 a.

Mere intoxication no ground for holding contract void, sec 118.

Otherwise when there is fraud, sec 119.

Ratification to be inductively shown, sec 120.

No defence in action for necessaries, sec 121.

Legal expenses may be necessaries, sec 122.

Inquisition prima facie evidence of incompetency, sec 123.

Spendthrifts may be incapacitated by local statute, sec 124.

Sec 98

Theoretically there is no person who can be spoken of as perfectly sane, and no one as perfectly insane. Between perfect sanity and perfect insanity the gradations are innumerable.1 If it were possible to conceive of a person utterly deprived of intellect, there would be no difficulty in saying that the contracts of which precludes the formation of a contract where the two parties are thinking about different things,1 precludes its formation when one of the parties is not thinking at all.

Total mental incapacity precludes contract.

1 See Wh. & St. Med. Jur. 4th ed. vol. i. sec 4 et seq. 128 such persons would be void. The assertion, however, involves a contradiction in itself. To make a contract no fixed standard of intelligence is required. We cannot, therefore, say of any particular party actually assenting to an act, that he is absolutely incapable of contracting. But this incapacity may, in many instances, practically exist, as is the case with idiots and old persons whose powers of recollection and discrimination have almost entirely ceased. Of these we may say generally that such persons, not having contracting minds, cannot contract.1 The true test is, not whether the party is capable of fully understanding the nature of an act and foreseeing its consequences, for this cannot be absolutely predicated of any person, but whether he is capable of seeing the act in the relations in which it would be seen by ordinary observers. If utterly deficient in this respect, he is insane.2 The same reason.

1 Sentance v. Pool, 3 C. & P. 1 ; Hall v. Warren, 9 Ves. 605 ; Banks v. Good-fellow, L. R. 5 Q. B. 549 ; Ball v. Man-nin, 3 Bligh (N. S.), 1 ; Burke v. Allen, 29 N. H. 106 ; Young v. Stevens, 48 N. H. 135 ; Van Deusen v. Sweet, 51 N. Y. 378 ; see 16 Alb. L. J. 292 ; Baldwin v. Dunton, 40 111. 188 ; Emery v. Hoyt, 46 111. 258 ; Somers v. Pumphrey, 24 Ind. 231. In 1 Wh. & St. Med. Jur. 4th ed. (1882) the topic in the text is considered as follows : Lunatics in any view liable for necessaries, sec 1. Also liable for contracts during lucid intervals, sec 2. Monomania does not incapacitate on other topics, sec 3. By early authorities lunacy no ground for avoidance, sec 4. Subsequent tendency to hold all contracts with lunatics void, sec 5. Question conditioned by fraud, sec 6. Inquisition only prima facie proof to third parties, sec 6 a. Better opinion that contracts by lunatics are voidable at option, sec 7. Contracts executed in good faith will be sustained, sec 8. Conflict as to whether deeds are voidable, sec 9. In rescission parties to be placed in statu quo, sec 10. Partnership contracts not dissolved, ipso facto, by lunacy,.