Supreme Court of New York, Westchester County
563 N.Y.S.2d 1001 (1990)

            In this case, an infant actor has disaffirmed a personal services contract. He thereby seeks to avoid responsibility to his manager for commissions due in the future on income from performance contracts already obtained for him by the manager.

            The salient facts are not in dispute. In 1984, when defendant Andrew M. Kavovit was 12 years of age, he and his parents entered into a contract with plaintiff (Scott Eden) whereby Eden became the exclusive personal manager to supervise and promote Andrew's career in the entertainment industry. This agreement ran from February 8, 1984 to February 8, 1986 with an extension for another three years to February 8, 1989. It provided that Eden was entitled to a 15% commission on Andrew's gross compensation. The contact states:

"With respect to contracts entered into by Artist during the term of this agreement, Manager shall be entitled to its commission from the residuals or royalties of such contracts, for the full term of such contracts, including all extensions or renewals thereof, notwithstanding the earlier termination of this agreement."

            In 1986, Andrew signed an agency contract with the Andreadis Agency, a licensed agent selected by Scott Eden pursuant to industry requirements. This involved an additional 10% commission. Thereafter, Andrew signed several contracts for his services. The most important contract, from a financial and career point of view, secured a role for Andrew on "As the World Turns," a long-running television soap opera. Income from this employment contract appears to have commenced on December 28, 1987 and continues through December 28, 1990, with a strong possibility for renewal.

            One week before the contract with Scott Eden was to expire, Andrew's attorney notified Eden that his "clients hereby disaffirm the contract on the grounds of infancy". Up until then, the Andreadis Agency had been forwarding Eden management commissions, but by letter of February 4, 1989, Andrew's father, David Kavovit, advised Andreadis that Andrew's salary would go directly to Andrew and that he would send Andreadis its 10%. Needless to say, no further commissions were sent to Eden.

            The complaint seeks money damages for (1) all sums due Eden for commissions relating to Andrew's personal appearances prior to February 8, 1989, the date of disaffirmance, and (2) all sums due Eden for commissions with respect to contracts entered into by Andrew in the entertainment or promotion fields during the term of his contract with Eden, "i.e., commissions from the residuals or royalties of such contracts -- the full term of such contracts -- including all extensions or renewals thereof."

            An infant's contract is voidable and the infant has an absolute right to disaffirm . This aspect of the law of contracts was well entrenched in the common law as early as the 15th century. In bringing this action, and defending the motion, plaintiffs fully recognize the principle of law involved here and in no way challenge the infant's right to disaffirm. Rather, plaintiffs rely upon a corollary to the main rule, which also evolved early in the common law "After disaffirmance, the infant is not entitled to be put in a position superior to such a one as he would have occupied if he had never entered into his voidable agreement. He is not entitled to retain an advantage from a transaction which he repudiates. 'The privilege of infancy is to be used as a shield and not as a sword.' Rice v. Butler, 150 N. Y. 578.

            The parties have not cited, nor has the court found, a case dealing with the exact issue at bar, i.e., whether disaffirmance may void the contractual obligation to pay agents' commissions without any concomitant exchange being made. However, an analogy may be drawn from the case of Mutual Milk & Cream Co. v Prigge (112 App Div 652). There, a minor had entered the employ of the plaintiff as a milk wagon driver and had signed a contract which included a restrictive covenant wherein the minor agreed not to solicit plaintiff's customers within three years after leaving plaintiff's employ. Several months after entering into the contract, the minor quit, pursuant to the terms of the contract, but then went to work for plaintiff's rival and solicited business from plaintiff's customers.

            The court affirmed the issuance of an injunction against the minor, who had pleaded infancy in avoidance of the contractual obligations. The court considered that the issue was not one of liability of an infant for a breach of his contract, but whether an infant should be allowed to repudiate his contract without restoring what he had received and, if restoration could not be made, without being enjoined from making use of the information he had gained from his employment by the plaintiff to the latter's damage.

            The rationale of the Mutual Milk case is applicable to this case. The work a personal manager does for and with his client is preparatory to the performance contract. Once a performance contract has been signed, the personal manager is entitled to his percentage fee, subject only to the condition subsequent that the client performs and earns his fee. When the client signs a performance contract, it is with the understanding that the gross amount to be paid is not solely for him. It is the expectation of all parties (the agent, the performer and, in this case, the soap opera production company), that 15% of that gross amount belongs to the personal manager. To the extent that the performer obtains that 15% for himself, he is unjustly enriched. In this case, the infant will continue to reap the benefits of his contract with plaintiff but is using his infancy as an excuse not to honor the promise made in return for that benefit.

            If the argument asserted by defendants were adopted by the court, the infant would be put in a position superior to that which he would have occupied had he never entered into the contract with plaintiff. He would be retaining an advantage from the repudiated transaction (i.e., using the privilege of infancy as a sword rather than a shield). Not only is this manifestly unfair, but it would undermine the policy underlying the rule allowing disaffirmance. If the infant may rescind the contract with the manager immediately after a lucrative performance contract is signed, yet still retain the benefits of the performance contract, no reputable manager will expend any efforts on behalf of an infant.

            In this case, adjustment of the equities so as to prevent unjust enrichment, leads to the conclusion that defendants must continue to pay to Eden all commissions to which he would be entitled under their contract, as they become due. Moreover, inasmuch as Eden will no longer be involved in the day-to-day personal management of the infant, Eden will be entitled to periodic statements regarding Andrew's income and the sources thereof and shall have the right to annual inspections of the books and records kept with regard to Andrew's income.