A person who is intoxicated can avoid liability on any contract due to the intoxication

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  • Home /
  • Edinburgh Law Review /
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  • Volume 24, Issue 1 /
  • Without the Power to Drink or Contract

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Edinburgh Law Review, January 2020, vo. 24, No. 1 : pp. 26-48

Without the Power to Drink or Contract

Warren Swain

Deputy Dean, Professor, Faculty of Law, University of Auckland. This article was largely written whilst a Visiting Fellow at Clare Hall, Cambridge. I would like to thank the President and Fellows for their hospitality. Thanks to my research assistant, Don Lye

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Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

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Edinburgh Law Review

Print ISSN: 1364-9809 Online ISSN: 1755-1692

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Can a person who is hopelessly intoxicated enter into a binding contract?

Mental Incapacity Minors, the mentally ill, and persons who are intoxicated or drug-addicted are generally excluded from entering into legal agreements. Mental incapacity simply means that a person does not have the competence to enter into a contract.

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Without​ exception, a contract entered into by an intoxicated person is void.

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Contracts entered into during lucid interval are valid. Contracts agreed to in a state of drunkenness or during a hypnotic spell are voidable.

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