Consider the following exchange, which I heard myself conduct approximately three hours ago, and which I record here with the consent of no one.
Parent: "If I let you stay up another half hour, you have to be ready for school tomorrow without me reminding you four times."
Child: "Yeah."
Parent: "Is that a yes?"
Child: "Yeah, okay."
I put it to you, colleagues, that a remarkable legal document has just been created. It has offer ("half an hour"). It has acceptance ("yeah, okay"). It has, if we squint, consideration: the parent surrenders one half-hour of bedtime compliance; the child promises, in exchange, the much vaguer good of tomorrow-morning autonomy. Put this exchange in any commercial setting — two businesspeople in a conference room, two merchants in a marketplace — and a judge would have no difficulty finding a contract.
Try to enforce it in the jurisdiction of the household, however, and you will find yourself, as I did this morning, reminding a child to brush their teeth for the fourth time, and being informed, in the tones of wounded innocence reserved for these occasions, that you "never said I couldn't be reminded." The contract is not a contract. The contract is a conversation. The conversation, we find, does not bind.
Why the Household Covenant Fails
There are, in my view, three reasons that agreements between parents and children at the kitchen table tend to lack the legal force they would enjoy in any other setting.
The first is the capacity problem. Minors, at common law, generally lack the capacity to enter into binding contracts, except for necessaries. This rule exists, sensibly, to protect children from being held to bargains they cannot reasonably be expected to understand. The rule is, for our purposes, also inconvenient, because it means that even the clearest agreement between a parent and child is voidable at the child's option. They may, if they choose, honor it. They may, equally, not. The choice is theirs.
The second is the consideration problem, which, though it can sometimes be finessed, often cannot. Parental offers to children frequently consist of the suspension of rules rather than the grant of anything positive. "I will let you stay up" is not, if we are honest, the provision of a benefit so much as the temporary non-enforcement of an existing restriction. Whether forbearance from enforcement of a parental rule constitutes consideration is, as far as I am aware, an open question in every jurisdiction. I would not want to brief it.
The third, and in my experience the most important, is the evidentiary problem. No kitchen-table covenant is ever reduced to writing. No kitchen-table covenant is ever witnessed by a neutral third party. No kitchen-table covenant is ever timestamped. Disputes about what was said, and what it meant, are adjudicated entirely on the basis of the parties' respective memories, which are self-interested, inconsistent, and — in the case of the adolescent party — strangely convenient.
What, Then, Is to Be Done?
We are occasionally asked, by clients who have been burned one time too many, whether we can recommend a form of household covenant that would actually stick. We cannot. No form of household covenant will stick. Households are not the kind of place where agreements stick. They are the kind of place where agreements are made, forgotten, made again, partially honored, mostly not, and gradually absorbed into the background pattern of daily life. This is not a defect of the household. It is, I think, the household's essential feature.
What we can suggest is that parents approach kitchen-table agreements in the spirit with which they are, in fact, usually offered: as ritual expressions of hope, rather than as enforceable instruments. The parent who says "if you stay up, you have to be ready tomorrow" is not contracting. They are praying. They are, in the soft light of the kitchen, uttering a small liturgy of expectation — and praying, too, that by saying it out loud, something about tomorrow morning will, for once, be different.
It will not be. But the saying of it is, in my view, not without value.