The doctrine of estoppel and its applicability in judicial system of Bangladesh

Introduction

In law, the doctrine of estoppel is a legal belief via which a claimant may be deterred from contending a legal right or depending onto a predetermined of facts towards cooperation an allegation whether that claimant has remarked or done something that contradict his latest claim. This doctrine tackles towards skirt unfairness or harm towards one party due towards inconsistencies of another party[1]. Estoppel is a principle of equity or justice which is invoked by a judge to prevent, or estop, a party from making a certain claim, if the party’s prior actions are in some sense inconsistent with making such a claim, and if another relied on such prior actions to his detriment[2]

On the other hand minor is a person under the legal age of full responsibility. The age depends upon jurisdiction and application, but is typically 18[3]. A contract with a minor is not enforceable. It can be voided. Someone who has not yet reached the age of majority cannot sign a legally binding contract.

So the applicability of the doctrine of estoppels against a minor is a controversial matter. Minor    people cannot have the right to join in a legal term unless or until it is required to. In almost   every say, the law reflects a public policy to obligate adults to. Sell with in common issue at their possess risk. These laws are planned to deter trading with children. If the doctrine of estoppel is applied against a minor then crime rate can go high. Anyone can accuse a person (who is a minor) without providing the legal formulations. If the estoppel is applied then also the opposition party of a minor can get the advantage.

 Agreement with a Minor

According to the contract act 1972 it says “All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.” So a minor typically cannot give consent in an agreement. Consent is said to be free when it is not caused by-

(1) Coercion, as defined in section 15, or

(2) Undue influence, as defined in section 16, or

(3) Fraud, as defined in section 17, or

(4) Misrepresentation, as defined in section 18, or

(5) Mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake[4].

The Doctrine of Estoppel against a Minor

Moreover there are three kinds of estoppels: (1) by deed; (2) by matter of record; and (3) by matter in pais[5]. Estoppel by deed “prevents a party to a deed from denying anything recited in that deed…[6]”. Estoppel by record means that “when a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again…, so long as judgment or decree stands for not reversed[7] so that one could argue in favor of estopping against the minor. This doctrine is a universal justice doctrine. It does not survive in continental justice systems. However, continental justice nations have the matching notions of minimal fairness and elementary justice, consequently they in addition have certain legal doctrine that aid realizes an unbiased balance among striving against interests. With several exceptions, a contract prepared via an incidental is voidable. A minor can only avoid a contract agreement throughout his few ranks and only for a sensible time after he comes to the age of majority. After a sensible time span of time, the agreement is regarded to be approved and will not be avoided. A minor is in law incapable of giving consent and, there being no consent. There being no contract at all and hence no liability in an agreement entered by the minor.

No Estoppel against a Minor

If a minor enters into any agreement by representing that he is of full age, is he estopped by Section 115 of the Indian Evidence Act, 1872 from setting up that he was a minor when he executed the agreement. In other words can he be precluded (prevented) from disclosing his true age in any subsequent litigation resulting from the contract? The position is – even if a minor has entered into a contract by misrepresenting his age, he can at any later stage plead “minority” and avoid the contract. Minority in Bangladesh is a fact and not a privilege (as in England) and this fact can be proved at any stage of the proceedings, regardless of the surrounding circumstances. In this situation a minor cannot change his/her mind after reaching the age of majority. Once the contract has been ratified, the ex-minor cannot change his mind and avoid the contract. Ratification consists of any words or conduct of the minor which shows an intent to be bound by the contract. Parents of a minor are not liable regarding the contracts made by the minor merely because they are the parents of the minor. However, if a minor makes a contract and a parent or any other mature individual indications along with the minor a co-signer, the parent or other mature individual can be held liable. For example, if Rahman, who is a minor, buys a car from Chowdhury Auto and Rahman’s father co-signs the loan documents with Chowdhury, Rahman’s father can be held liable on the loan even if Rahman seeks to avoid the contract.

 Rules of effect of minor’s agreement

To make an agreement with a minor the counterpart need to know about the rules and regulation of the contract with the minor. Contract with minor is not as same as contract with an adult. Under the contract act 1872 no one can contract with a minor. But if it needs to make then there will be a co-signer with the minor. If minor cannot meet the demand of the counterpart then the co-signer will meet the demand.

1. An agreement made with minor is altogether void- The phrase void entails “void as contrary to the minor”. Contract with or by a secondary is entirely void. The Act presents that an individual who is a foremost is competent to contract. An affirmation by a secondary engage in a pledge on his part and he is incapable of giving a pledge enforcing a lawful obligation
2. Contract for necessaries of life

It has already been signed that a minor’s dealing is void ab initio, and he is incapable of making dealing towards buy any facilities rendered or commodities geared towards him.  However, for the necessaries geared towards a secondary rebate is permitted toward the fellow gearing such necessaries.  This is not onto the cornerstone of any contract between the parties but because it is deemed towards be quasi-contractual obligation[8]. If a person, unable of entering into a contract, or any one whom he is legally contracted to advocate, is provided via another person with necessaries suited to his condition in life, the person whoever has furnished such provides is named to be compensated from the property of such unable person.

1. Minor as a partner- This retrospective result appears to be contrary to the essence of the contract act, since in result it entails that the secondary had went into into a legitimate agreement of joint project throughout his minority. This is in confrontation with Section 11 of the Contract Act, which expressly lays down that a minor’s agreement is void ab initio. This anomaly is exceedingly regrettable and may have was drawn from because Indian Partnership Act follows the English Partnership Act to the spot and in England different India a minor’s agreement may be valid, void or voidable counting on the environment of the contract. The legislature in border this part seems to have failed in taking observe of  this rudimentary distinction between the agreement regulations of these two countries

Minor under Insolvency Act- A minor in India and Bangladesh cannot be declared insolvent or bankrupt, nor can his properties be attached. So in case of bankruptcy and insolvency the guardian of the minor will be responsible for that.

Minor as a trade union member– A minor over the age of 15 years and below the age of 18 years can be a member of registered trade union, and can enjoy all rights and privileges available to such members.

Minor as a transferee- Under the Transfer of Property Act, 1872, Section 13, 14 and 127 deal with transfer of property for the benefit of minor. Section 13 and 14 import with Rules against perpetuity and state that premises can be moved towards an unborn fellow via the media of living fellow a, i.e. former the premises goes towards a fellow living at the time of shift and as soon as his morality towards a fellow whom is unborn at the moment of former transfer. This unborn person should be at lowest conceived at the moment when the former interest arrives towards an end and he acquires full interest within the premises onto his achieving majority.

 Conclusion

It should be noted that, in practice, minors do not become emancipated without the express consent of their parents or guardians, and it is justifiably difficult to obtain a declaration of emancipation. But it also noted above that a minor is not competent to contract, though if the situation arises for minor to participate in the contract then that activities should be done by the guardian. When an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.

 Bibliography:

1. Henry Campbell Black, Black’s Law Dictionary, Sixth Edition (St. Paul, Minnesota: West Publishing Co., 1990).
2. Bryan A. Garner, Ed. In Chief, Black’s Law Dictionary, Seventh Edition (St. Paul, Minnesota: West Group, 1999).
3. The doctrine of estoppel is one of fundamental justice. …Courts have gone a long way in applying it to prevent manifest injustice and wrong” (Scott County v. Advance-Rumley Thresher Co.,(CA8) 288 F 739, 36 ALR 937).
4. English Contract Law: Misrepresentation in English Law, Interpreting Contracts in English Law, Contracts Act 1999, Privity in English Law
5. Minors’ Contracts Act 1969 No 41 (as at 01 April 2011), Public Act
6. MINORS (PROPERTY AND CONTRACTS) ACT 1970
7. http://www.drambedkarlawcollege.com/3years.pdf
8. http://districtcourtallahabad.up.nic.in/articles/ICAct.pdf
9. http://www.austlii.edu.au/au/legis/nsw/consol_act/maca1970348/

10. http://www.aoc-india.co.in/pdf/LAW-IPCC.1-R.D.MAHESHWARI.pdf

11. http://www.sm.ee/fileadmin/meedia/Dokumendid/ASO/TLS/TLS_ENG.pdf

12. Principles of contract law [Book] by Steven J. Burton in Books

13. Essentials of contract law [Book] by Martin A. Frey, Phyllis Hurley Frey in Books

14. Basic contract law [Book] by Lon L. Fuller, Melvin Aron Eisenberg in Books