THE LAW REFORM COMMISSION
AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ
(LRC 15 – 1985)
REPORT ON MINORS’ CONTRACTS
The Law Reform Commission,
Ardilaun Centre, 111 St Stephen’s Green, Dublin 2
© Copyright The Law Reform Commission 1985
First Published 1985
THE LAW REFORM COMMISSION
REPORT ON MINORS’ CONTRACTS
CHAPTER 1 INTRODUCTION
In December, 1975, pursuant to the provisions of section 4, subsection (2)(c) of the Law Reform Commission Act 1975, the Attorney General requested the Law Reform Commission to initiate an examination of, and research in, “the law relating to the age of majority” and if thought fit to formulate proposals for the reform of the law and submit these proposals to him.
We duly commenced the investigation into the law relating to the age of majority. As the research progressed it became clear to us that we could not limit ourselves to the simple question of whether or not an alteration should be made in the law as to the age of majority: other related questions would of necessity require examination. One of these related questions is concerned with whether the law relating to the contractual capacity of a minor should be changed.
In due course the Commission published a Working Paper entitled “The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects”.1 In the Working Paper we recommended2 a reduction in the age of majority to 18, or to the date of marriage, if below that age; and we dealt with the consequences of the reduction in the age of majority. The Working Paper also gave a brief outline3 of the law relating to the contractual and other obligations of a minor. The only change in the existing law of contract
Working Paper No. 2, December 1977.
Id., paras 2.38, 2.45.
Id., paras 3.6–3–25.
that we recommended4 in the Working Paper was that a minor should acquire full contractual capacity on reaching full age at the proposed age of majority (i.e. 18 or on marriage if below 18) rather than at 21 years. In our Report on the Age of Majority, the Age for Marriage and Some Connected Subjects,5 published in 1983, we made recommendations to the same effect.
These recommendations were given effect by section 2(1) of the Age of Majority Act 1985, which came into operation on 1 March 1985. We are of the opinion that the entire law regarding the contractual capacity of a minor should be revised and modernised having regard to modern social and economic developments.
The present Report sets out6 the main features relating to the contractual capacity of a minor. It briefly describes the legal position elsewhere and considers the legislation and proposals for legislation on the subject in certain other jurisdictions.7 Finally, in this Report, we analyse8 the deficiencies in the present law and make recommendations for its reform.
Id., para. 3.26.
Infra, Ch. 2.
Id., Ch. 3.
Id., Ch. 4.
CHAPTER 2 THE LAW IN IRELAND RELATING TO MINORS’ CONTRACTS
The basic principle of the present law1 is that a minor must be protected against his immaturity in his dealings with other persons.2 At the same time the policy of the law is to mitigate some of the hardships that might be imposed on persons dealing with a minor, so as to encourage them to enter into contracts that are for the minor’s benefit.
The contracts of a minor may be dealt with under the following three headings:–
contracts that are binding on the minor;
contracts that are deemed void by the Infants Relief Act 1874;
contracts that are binding on a minor unless and until he repudiates them.
(1) Contracts that are Binding on a Minor
Where a minor enters into a contract with another person, whereby that person sells or supplies him with a necessary or necessaries, the contract will bind the minor. The courts have considered it in the minor’s interest (as well as that of the other party) that he should be able to enter
See generally Clark, 167–176, Cheshire & Fifoot, 379–398, Chitty, vol. 1, paras. 532–592, Payne, The Contractual Liability of Infants, 5 Western L. Rev. 136 (1966). Comparative analyses include Hartwig, Infants’ Contracts in English Law: With Commonwealth and European Comparisons, 15 I.C.L.Q. 780 (1966), Kindred, Basic Problem of Minors’ Contractual Capacity: Reform in England, France, Ethiopia and the United States of America, in Festschrift Rheinstein, vol. 2, p. 523.
Cf. Lloyd v Sullivan, unreported, High Ct., McWilliam, J., 6 March 1981 (1981–395Sp.) at p. 3.
into binding contracts for necessaries.3 The law relating to the sale of necessary goods is governed by section 2 of the Sale of Goods Act 1893, and the law relating to the supply of other necessaries is governed by the common law. In substance, however, the concept of what a necessary means is the same whether the statute or the common law applies. By way of extension of the concept of necessaries, certain contracts of service will bind a minor if they are for his benefit.
Section 2 of the Sale of Goods Act 1893 provides that where necessaries are sold and delivered to a minor he must pay a reasonable price for them. Necessaries in this section are defined as meaning “goods suitable to the condition in life of [a minor] …. and to his actual requirements at the time of the sale and delivery”.
The burden of showing not only that the goods were suitable to the condition in life of the minor but also that they were suitable to his actual requirements at the time of the sale and delivery, rests upon the supplier of the goods.4 Thus, where a minor has already been sufficiently supplied with the goods in question, even though this fact is not known to the supplier,5 the contract will
In Zouch ex dimiss., Abott & Hallet v Parsons, 3 Burr. 1794, at 1801, 97 E.R. 1103, at 1106–1107 (1765), Lord Mansfield said:
“…. miserable must the condition of minors be; excluded from the society of the world; deprived of necessaries, education, employment, and many advantages; if they could do no binding acts. Great inconvenience must arise to others, if they were bound by no act.”
Nash v Inman,  2 K.B. 1, noted by Anon., Evidence in Actions Against Infants, 52 Sol. J. 577 (1908).
Barnes v Toye, 13 Q.B.D. 410 (1884), Johnstone v Marks, 19 Q.B.D. 50 (1887), Lyett v Lampmann, 53 O.L.R. 149 (1922).
not bind him.6
Whether or not goods or services are necessaries is determined in two stages. First, the court must determine, as a matter of law, whether the particular goods or services are capable of being necessaries: that is, “whether there are any grounds on which they might be said to be needed to maintain the minor in his status or condition”.7 Secondly, assuming that the goods or services are capable of being necessaries, the plaintiff must prove that, as a matter of fact, they are necessaries in his or her particular circumstances.8 This two-stage process has lost much of
Nash v Inman, supra, fn. 4. In a commentary on Nash v Inman, in 24 L. Q. Rev. 236, at 237 (1908), it is stated:
“The judgments do not point out how the seller is to satisfy himself as to the amount and quality of like goods already in the buyer’s possession, still less how he is to prove such facts in a court of justice except by the help of cross-examination. Practically the result would seem to be that prudent tradesmen will deal with infants only for cash, which, for anything we know, may be desirable.”
English Law Commission’s Working Paper No. 81, Minors’ Contracts, para. 2.4 (1982). See also Chapple v Cooper, 13 M. & W. 252, at 258, 153 E.R. 105, at 107 (per Alderson, B., 1844). Cf. Ryder v Wombwell, L.R. 4 Ex. 32 (1868) (pair of jewelled solitaires and an antique goblet incapable of being necessaries, even for minor with large unearned income). See also Skrine v Gordon, I.R. 9 C.L. 479, at 482 (Com. Pleas, per Lawson, J. 1875).
See the English Law Commission’s Working Paper No. 81, Minors’ Contracts, para. 2.4 (1982). See also Skrine v Gordon, supra. Cf. Navin, The Contracts of Minors Viewed from the Perspective of Fair Exchange, 50 N. Carolina L. Rev. 517, at 526 (1972):
“Since all the circumstances surrounding the status of a minor are considered – his station in life, the nature of the subject matter, and so forth – it is conceivable that almost anything could be a necessary, given the appropriate status of the infant.”
its former significance in the absence of trial by jury in contract cases.9
What constitutes necessaries will depend largely on the individual circumstances and requirements of the minor10 but the following general categories include the principal types of case:
(i) Food and Drink
Since the early development of the law of contract, the courts have held that food and drink may be necessaries in certain circumstances.11 But equally clearly there can be occasion where beverages may not constitute necessaries.12
The courts have frequently held that clothing may be a necessary,13 but it is of course clear that certain items of
Cf. Payne, The Contractual Liability of Infants, 5 Western L. Rev. 136, at 138, fn. 8 (1966).
Moreover, “it must be remembered that the usages of society change and [that] articles which were necessaries may no longer be held to be so and vice versa”: Chitty, vol. 1, 302, para. 543.
Pickering v Gunning, Palm. 528, 82 E.R. 96 (1928), Tuberville v Whitehouse, 12 Price 692, 147 E.R. 848 (1823), Rearsby and Cuffer’s Case Co. Litt. 172A, Whittingham v Hill, Cro. Jac. 494, 79 E.R. 421, at 422 (1618).
E.g. Wharton v Mackenzies, Cripps v Hills, 5 Q.B.606, 114 E.R.1378 (1844), Brooker v Scott, 11 M.& W.67, 152 E.R. 718 (1843), Brooke v Gally, 2 Atk. 34, 26 E.R.427 (1743).
Mackerelle v Bachelor, Gouldsb. 168, 75 E.R. 1070 (1601), Maddosc v Miller, 1 M. & S. 738, 105 E.R. 275 (1813), Ive v Chester, Cro. Jac. 560, 79 E.R. 480 (1620) (action failed on pleading point, however), Rainsford v Penwick, Carth. 215, 124 E.R. 924 (1670), Rearsby and Cuffer’s Case, supra, fn. 11, Vere v Delavall, Jo. W. 146, 82 E.R. 778 (1626), Coates v Wilson, 5 Esp. 152, 170 E.R. 769 (1804). Whittingham v Hall, supra, fn. 11. In the United States, in Jordan v Coffield, 70 N.C. 110 (1874), a bridal gown for a young girl was declared to be a necessary.
apparel may not be necessaries.14
(iii) Board and Lodging
The provision of board and lodging may constitute a necessary in certain cases.15
It was held16 in 1898 that a racing bicycle used “occasionally” for transportation rather than in races may nonetheless be a necessary. In two Irish decisions, Skrine v Gordon17 and In re Mead,18 the purchase of a hunter
Cf. Nash v Inman, supra, fn. 4, Ryder v Wombwell, L.R. 4 Ex. 32 (1869).
Duncomb v Tickridge, Aleyn 94, 82 E.R. 933 (1648), Rearsby and Cuffer’s Case, supra, fn. 11. See also Lowe v Griffith, 1 Scott 458, at 460 (1835), cited by Halsbury’s Law of England (3rd ed., vol. 21) at p. 143, fn. 2. In British Columbia, in Soon v Watson, 33 D.L.R. (2d) 428 (B.C. Sup. Ct., 1962), the purchase by an infant married couple of a house was held to be a contract for a necessary, but it has been observed that “it is quite likely that a similar purchase by an unmarried infant would be unenforceable on the grounds that it would not be a necessary to the same extent”: Percy, The Present Law of Infants’ Contracts, 53 Can. Bar Rev. 1, at 2 (1975). Cf. the Alabama decision of Ragan v Williams, 127 So. 190 (1930) and contrast Lawrence v Baxter, 267 N.W. 742 (Mich., 1936) and Merrick v Stephens, 337 S.W. 2d 713 (Mo., 1960). See also Freeman v Bridges, 49 N.C. 1 (1856). The fact that a person under the age of 18 now ceases to be a minor on marrying (Age of Majority Act 1985, section 2(1)) should be noted in this context.
Clyde Cycle Co. v Hargreaves, 78 L.T. 296 (1898).
I.R. 9 C.L. 479 (1875).
 2 I.R. 285 (K. B. Div.).
was held not to bind the minor,19 although in In re Mead20 Sir Ignatius O’Brien, L.C., made it clear that he was not “laying down that under no circumstances could a hunter be a necessary”. In O’Neill v Read,21 the purchase of a horse by a minor who claimed that his health was delicate and that he required “horse exercise”22 was held by the jury to constitute a necessary.
Motor vehicles have caused more difficulty for the Courts. In Fawcett v Smethurst,23 1914, Mr Justice Atkin held that a contract made by a comfortably-off 20-year-old youth for the hire of a car at taxi-cab rates to drive a journey of six miles was binding on him as a necessary. In the United States the majority of jurisdictions still hold that a car
In Skrine v Gordon, I.R. 9 C.L. at 483, Lawson, J., stated:
“Of course we all know that hunting is a good sport and a manly exercise, but still that only shows it is a sport, and luxuries or amusement are quite distinct from necessaries.”
In Wharton v Mackenzie, 5 Q.B. 606 at 612, 114 E.R. 1378 at 1380 (1844), Coleridge, J., stated:
Suppose a son of the richest man in the kingdom to have been supplied with diamonds and racehorses, the Judge ought to tell the jury that such articles cannot possibly be necessaries.” (Emphasis added.)
 2 I.R. at 194. See also, to similar effect, Harrison v Fane, 1 Man & G. 550, at 553, 133 E.R. 450, at 452 (per Tindal, C.J., 1840).
7 Ir. L. Rep. 434 (C.P., 1845). See also Hart v Prater, 1 Jur. 623, 49 Eng. Rep. 746 (K.B., 1837), Barber v Vincent, Freem. K. B. 531, 89 E.R. 397 (1680. Cf. Clowes v Brook, 2 Str. 1101, 93 E.R. 1058 (1739) where, though the plaintiff farrier’s claim for work done on an infant’s horse failed on technical pleading grounds, it would appear clearly to have been accepted by the Court that a horse could be a necessary in certain cases.
7 Ir. L. Rep., at 434.
84 L.J.K.B. 473 (1914).
is not a necessary for a minor save in cases of clear business necessities.24
One commentator in the United States, writing in 1952, speculated that:
“Perhaps, the reluctance to classify an automobile as a necessary (and thus give the adult some recovery) is a reflection of the widespread feeling that automobile merchandising may not represent an exchange that is foursquare, particularly when one of the parties to the transaction is a young and inexperienced customer.”25
Canadian courts have, until relatively recently, “uniformly refused to regard a car as a necessary”,26 but in the British Columbia decision of First Charter Financial Corp. Ltd. v Musclow27 in 1974, Mr Justice Craig, while holding on the facts that the evidence did not establish that the car sold to the infant was necessary, stated:
“It seems to me that in present day circumstances, many goods which at one time clearly would be unnecessary, must now clearly be a ‘necessary’. The ownership of
Mitchell v Campbell & Fetter Bank, 195 N.E. 2d 489 (Ind. App. Ct., 1964); Cf. Valencia v White, 134 Ariz. 139, 654 P. 2d 287 (1982), Gillis v Whitley’s Discount Auto Sales, Inc., 319 S.E. 2d 661 (N.C.App., 1984) (Point not pleaded). In Some decisions cars have been held to be necessaries: see e.g. Daubert v Mosley, 487 P. 2d 353, 56 A.L.R. 3d 1328 (Okla. Sup. Ct. 1971) and compare Bryant annotation, 56 A.L.R. 3d 1335 (1974).
Navin, The Contracts of Minors Viewed from the Perspective of Fair Exchange, 50 North Carolina L. Rev. 517, at 524 (1952). Cf. McGuire. Note, 6 Hastings L.R. 112 at 114–115 (1954).
Percy, supra, fn. 15, at 3, citing Coull v Kolbuc, 78 W.W.R. 76, at 78 (Alta D.C., 1968) Fannon v Dobranski, 73 W.W.R. 371 (Alta D.C., 1970) and Noble’s Ltd. v Bellefleur, 37 D.L.R. (2d) 519 (N.B.C.A., 1963). See also Pyett v Lampman,  2 D.L.R. 249, (Ont. S. C. App. Div.).
49 D.L.R. (3d) 138 (B.C. Sup. Ct., Craig, J., 1974).
a motor vehicle is a clear illustration of this proposition. At one time the ownership of a motor vehicle was a luxury even for a small group of people. Today in [Canada], ownership of a motor vehicle is a commonplace thing and many young people from 16 years and up not only drive motor vehicles regularly, but own a motor vehicle.”28
In Australia the trend of decisions appears to be towards recognising that a car may be a necessary for a minor, depending on the circumstances of the minor and the purpose for which the car is obtained.29
Train journeys have been held to constitute necessaries in a number of cases.30 While it would appear likely that the purchase of an air ticket could in some cases31 be held to be a necessary, at all events for long distances, an English decision32 has held that flying lessons for a law student did not constitute a necessary.
(v) Medical Aid
The provision of medical aid may constitute a necessary33
Id., at 142–143.
Cf. Mercantile Credit Ltd. v Spinks,  Q.W.N. 32 (car held to be a necessary to enable minor to earn living as a salesman); Re Mundy,  A.L.R. 264 (car bought on hire-purchase by minor for his own private purposes and occasionally for transport to his place of employment nearly ten miles away; car held not a necessary).
Brennan v G.N.R., 68 I.L.T.R. 145 (1935), Keays v G.S.R.,  I.R. 543, Flower v London & North Western Ry.,  2 Q.B. 65. Cf. infra, pp. 15–19.
As, for example, where an Irish 17-year-old buys a ticket to fly to London for an interview for a job or for university selection.
Hamilton v Bennett, 95 J.P.N. 136 (1930).
Dale v Copping, 1 Bulst. 39, 80 E.R. 743 (1610) (cure of falling sickness), Huggins v Wiseman, Carth. 110, 90 E.R. 699 (1690) (cure of a distemper).
provided that the assistance is not of frivolous or merely cosmetic nature. Thus, where, for example, a dentist fills a minor’s teeth without the prior knowledge of the minor’s parent34 or contrary to parental instructions,35 the court will not normally hold that this intervention constitutes necessary services.
(vi) Legal Aid
The provision of legal aid for the purposes of litigation or for non-litigous matters such as the preparation of a marriage settlement may constitute a necessary.36
(vii) Funeral Expenses
Under the law formerly, it appeared37 that a minor widow or widower would be bound in respect of a contract for the
Cf. McCallum v Hallen,  E.D.L. 74 (S. Afr.). In Chapple v Cooper, 13 M. & W. 252, at 248, 153 E.R. 105, at 107 (1844), Alderson, B., stated that the medicines given to a minor “will depend on the illness with which he is affected, and the extent of his probable means when of age.”
Cf. McCallum v Hallen, supra, fn. 34.
Helps v Clayton, 17 C.B.N.S. 553, 144 E.R. 222 (1864), where Willes, J., stated (at pp. 571 and 229 respectively) that “[i]t would be a perversion of the law for the protection of infants, to hold that under these circumstances an infant could not contract for the preparation of such a settlement”. See also Prince v Haworth, 20 T.L.R. 313 (P.D.A.Div., Gorell Barnes, J., 1904), subsequent proceedings,  2 K.B. 768 (K.B. Div., Lawreance, J.). The fact that a person under the age of 18 now ceases to be a minor on marrying (Age of Majority Act 1985, section 2(1)) should be noted in this context.
Chapple v Cooper, 13 M. & W. 252, 153 E.R. 105 (1844). The fact that a person under the age of 18 now ceases to be a minor on marrying (Age of Majority Act 1985, section 2(1)) should be noted in this context.
burial of his or her deceased spouse or children. A minor would not appear, however, to be liable for funeral expenses incurred for the benefit of a parent or brother or sister.38
Loans for Necessaries
At common law, a loan of money to a minor to pay for necessaries was not recoverable.39 But where a minor had borrowed money for this purpose and had actually paid the money for the necessary the lender could stand in the place of the person who had supplied the necessary and sue for the money lent.40 This rule has “most probably survived”41 the
In Chapple v Cooper, supra, fn. 37, at 260 and 108, respectively, Alderson, B., stated that “[i]t may be observed, that as the ground of our decision arises out of the previous contract of marriage, it will not follow from it that an infant child, or more distant relation, would be responsible upon a contract for the burial of his parent or relative.”
Earle v Peale, 1 Salk. 386, 91 E.R. 336 (1711) (where Parker, C.J., stated (at pp. 387 and 336 respectively) that the money “may be borrowed for necessaries, but laid out and spent at a tavern”). See also Probart v Knouth, 2 Esp. 472n; 172 E.R. 423 (1783), Darby v Boucher, 1 Salk. 279, 91 E.R. 244 (1694), Ellis v Ellis, 3 Salk. 197, 91 E.R. 774 (1698).
Cf. Marlow v Pitfield, 1 P. Wms. 558, 24 E.R. 516 (1719).
Anson, 218. Decisions in accordance with the common law approach decided after the passage of the 1874 Act include Lewis v Alleyne, 4 T.L.R. (C.A., 1888) and Martin v Gale, 4 Ch. D. 428 (Sir G. Jessel, M.R., 1876). As Trietel points out, however, these are not strong authorities, the 1874 Act not having even been cited in either decision: The Infants Relief Act 1874, 73 L.Q.R. 194, at 198 (1957). Cf. Atiyah, The Infants Relief Act 1874 – A Reply, 74 L.Q.R. 97, at 99 (1958), who argues that the fact that the Act was not cited was probably because counsel and court alike thought it to be irrelevant. Trietel later resiled from this position (see G. Treitel, The Law of Contract, 349, fn. 39 (1962)) as a result of a more detailed analysis of the legislative history of the Bill which ultimately led to the 1874 Act; he stated, however, (id.) that Atiyah’s grounds for criticising his former position “did not convince” him.
prohibition relating to loans to minors in section 1 of the Infants Relief Act 1874. However, any security given in respect of a loan is unenforceable even though the money was required for necessaries, and an account stated is void in spite of the fact that some of the items in the account are necessaries.42 A bill of exchange or promissory note is void as against both the minor and any third person even though given in payment of necessaries.43
The Basis of Minors’ Liability for Necessary Goods
The question whether a minor’s liability for necessary goods is to be determined by reference to a contractual or a quasi-contractual restitutionary principle has not yet been resolved. The issue is of practical significance because if the minor’s liability is based on contract he will be liable on a executory contract for necessaries, whereas if it is based on quasi-contract44 he will be liable only on supply of the necessary goods. In Nash v Inman,45 Fletcher Moulton, L.J. suggested that the obligation rested on quasi-contract, but in the same case Buckley, L.J. based46 the minor’s liability on contract.
Williams v Moor, 11 M. & W. 256, 152 E.R. 798 (1848).
Re Soltykoff, ex p. Margrett,  1 Q.B. 413 (C.A.), where Lopes, L.J., stated (at p. 416):
“[E]ven if the proceedings were between the original parties to the bills, the answer to the claim would be, that an infant cannot render himself liable upon a bill of exchange or a promissory note. This is no hardship upon a person who supplies necessaries to an infant, for he is entitled to sue the infant upon the original contract.”
Cf. In re Rhodes. Rhodes v Rhodes, 44 Ch. D. 94, at 107 (C.A., per Lindley, L.J., 1890); and see Miles, “An Infant’s Liability for Necessaries”, 43 L. Q. Rev. 389, at 391 (1927).
 2 K.B. 1, at 8 (C.A.). See also Guardian of Pontypridd Union v Drews,  1 K.B. 214, at 220 (C.A., per Scrutton, L.J.), Rex v Rash, 53 O.L.R. 245, at 256 (per Rose, J., (1923)), Trainer v Trumbull, 141 Mass. 527, at 530, 6 N.E. 761, at 762 (C. Allen, J.).
 2 K.B., at 12.
In respect of necessary services, the English case of Roberts v Gray47 in 1913 held that a contract by a minor of a broadly educational nature could be enforced against him although it was still to a large extent executory. Hamilton, L.J. was:
“unable to appreciate why a contract which is in itself binding, because it is a contract for necessaries not qualified by unreasonable terms, can cease to be binding merely because executory …. If the contract is binding at all, it must be binding for all such remedies as are appropriate to the breach of it.”48
Although some commentators49 have tentatively tried to do so, it is difficult to reconcile these differing approaches.50
Other Contracts Beneficial to a Minor, including Contracts for Education, Apprenticeship Contracts, and Contracts of Service
Certain contracts which, taken as a whole, are for the minor’s benefit, are treated as though they were contracts for necessaries, and will bind the minor. These include
 1 K.B. 530.
 1 K.B., at 530. See, however, Walter v Everard,  2 Q.B. 369, at 374 (per Lord Esher).
Including Cheshire & Fifoot, 382–383; see also Miles, “The Infant’s Liability for Necessaries”, 43 L.Q.Rev. 389 (1927); cf. Payne’s criticism: The Contractual Liability of Infants, 5 Western L.Rev.136, at 142 (1966).
Cf. McCamus, Restitution of Benefits Conferred Under Minor’s Contracts, 28 U. New Brunswick L. J. 89, at 98 (1978).
contracts of apprenticeship,51 education,52 and service,53 and contracts in analogous areas.54
The Irish courts have gone some distance further than their counterparts in other jurisdictions in their treatment of this subject. In Keays v Great Southern Railways Co.,55 in 1940, the plaintiff was a twelve-year-old schoolgirl who held a “school season ticket” from the defendant railway company, which transported her to and from school. The ticket was issued at a significantly reduced rate, and contained special conditions absolving the company from all liability for injuries carried by their negligence. The plaintiff was injured in a railway accident, allegedly caused by the defendant company’s negligence. The company relied inter alia on the conditions contained in the contract.
Hanna, J. refused the application for a direction made by counsel for the defendant at the conclusion of the plaintiff’s case. He said:
“An infant prima facie cannot make a contract, but an infant has certain rights in law, and a contract made by an infant is not in itself a void contract; it is only a voidable contract. That means that it is open to the infant at any time to repudiate the contract.
E.g. Meakin v Morris, 12 A.B.D. 352 (1884), De Francesco v Barnum, 45 Ch. D. 430 (1890) (noted by Pollock, in 6 L. Q. Rev. 240 (1890).
Roberts v Gray,  1 K.B. 520, Mackinlay v Bathurst, 36 T.L.R. 31 (C.A., 1919).
Clements v London & N.W. Ry.,  2 Q.B. 482, (C.A.), Flower v London & N.W. Ry.,  2 Q.B. 65 (C.A.).
Doyle v White City Stadium Ltd.,  1 K.B. 110 (C.A., 1934), noted by C.A. W[right], 13 Can. Bar Rev. 319 (1935); Chaplin v Leslie Frewen (Publishers) Ltd.,  Ch. 71 (C.A. 1965) (noted by Mummery in 82 L. Q. Rev. 471 (1966)) (contract to write autobiography with assistance of “ghost writers”); Denmark Productions Ltd. v Boscobel Productions Ltd., 111 S.J. 715, rev’d on other grds.,  1 Q.B. 699 (management of pop group).
 I.R. 534 (High Ct., Hanna, J., with jury, 1940).
In determining whether the contract is for the benefit of the infant, the Court must consider the contract as a whole. It is not sufficient that the infant get some benefit from the contract. The Court has to take into consideration the obligations or limitations imposed by the company on the [natural] and legal rights of the infant.”56
Hanna, J. considered it to be “manifestly absurd”57 to think that a school child, even of twelve years of age and even of the intelligence of the plaintiff, should be expected to be aware of the contractual limitation on her rights:
“it is a contract made with the child, and while it is a valid contract, and capable of being acted upon while in operation, it is the law that the child is entitled to repudiate it and to have determined by the Court whether a contract of this kind is for her benefit or not.”58:
Hanna, J. was of opinion that the contract in question was “very unfair to the infant because it deprives her of practically every common law right that she has against the railway company in respect of …. negligence ….”59 For that reason he considered that the contract was not for her benefit and that the plaintiff’s case based on negligence should proceed.
It is apparent that the passages quoted from the decision lend themselves to a very broad interpretation since they would appear capable of appplying to all contracts made by minors. Elsewhere in the judgment, however, Hanna, J.
Id., at 536.
Id., at 537.
speaks in more qualified terms,60 and his reliance on an English precedent61 clearly in point would suggest that his broader statements should perhaps be read in this more orthodox context. It could scarcely be contested strongly that a contract for transport to and from school is sufficiently related to, and analogous with, a contract for education for it to fall within the category.
A decision more difficult to rationalise in these limited conventional terms is Harnedy v National Greyhound Racing Co. Ltd,62 three years later, where the plaintiff was a nine-year-old girl who entered her greyhound for a racing trial and auction sale to be conducted by the defendants. During the trial the greyhound was injured, and the plaintiff sued the defendants alleging negligence in the conduct of the trial. The defendants relied on broadly drafted exemption clauses.
Geoghegan, J., in the High Court, affirming the Circuit Court decision in favour of the plaintiff, considered that, as a result of the comprehensive exclusion from liability:
“the possible disadvantages from a legal standpoint flowing from the express terms of the contract …. oblige me to disregard them as against this plaintiff, and to treat the special contract (taken as a whole), as one substantially to the detriment of the plaintiff. I must regard the sale as having been held on an open contract of employment affording no protection to the defendants against their common law liability for negligence.”63
Cf. id., at 536, where Hanna, J. stated that the decision of Flower v London & North Western Ry. Co.,  2 Q.B. 65 (C.A.) was:
“a clear enunciation by eminent Judges that, in considering a contract of this kind made with an infant, the Court has to peruse and consider the entire contract to decide whether it is for the benefit of the infant.”(Emphasis added.)
Flower v London & North Western Ry. Co.,  2 Q.B. 65 (C.A.).
 I.R. 160 (High Ct., Geoghegan, J., 1943).
Id., at 164.
In arriving at this conclusion, Geoghegan, J. stated that he had “followed”64 the decision of Keays v Great Southern Railways Co.65 and Flower v London & North Western Railway Co.66
It is difficult to see how those decisions could have assisted the Court in Harnedy v National Greyhound Racing Co. Ltd,67 where the contract does not appear to have had any connection, whether by way of analogy or otherwise, with contracts for the education or employment of children or contacts for personal services.
It is clear that trading contracts do not bind a minor.68 The distinction between trading contracts and contracts for apprenticeship and education and analogous contracts may often be difficult to draw. Treitel has commented that:
“An infant haulage contractor is a trader, but probably an infant racing driver would not be. An infant house painter would probably be regarded as a trader; but not an infant portrait painter.”69
 I.R. 534 (High Ct., Hanna, J., with jury, 1940).
 2 Q.B. 65 (C.A.).
 I.R. 160 (High Ct., Geoghegan, J., 1943).
Cowern v Nield,  2 K.B. 419 (K. B. Div.) (discussed by Anon., The Liability of an Infant on his Contracts, 46 I.L.T. & S.J. 211 (1912)); Ex Parte Jones. In re Jones, 18 Ch. D. 109 (C.A., 1881), Mercantile Union Guarantee Corporation v Ball,  2 K.B. 498, (C.A.) Jenkins v Way, 14 N.S.R. 394 (1881). The contract may, however, be enforced by the minor at his option: Bruce v Warwick, 6 Taunt. 118, 128 E.R. 978 (1815). In Tuberville v Whitehouse, 1 C. & P. 94, 171 E.R. 116 (1823) it was held that where goods are supplied to a minor for trading purposes, the supplier may recover payment for such of the goods as are consumed as necessaries by the minor’s family.
There is no general principle that, if a contract is for the minor’s benefit, it will bind him. For an apprenticeship, service or other contract specifed above, to be binding on the minor, it is necessary that, taking all aspects into account, it should be for his benefit.
In De Francesco v Barnum,70 Fry, L.J., stated:
“It is not because you can lay your hand on a particular stipulation which you may say is against the infant’s benefit, that therefore the whole contract, is not for the benefit of the infant. The Court must look at the whole contract, having regard to the circumstances of the case, and determine, subject to any principles of law which may be ascertained by the cases, whether the contract is or is not beneficial.”:
(2) Contracts Valid Unless Repudiated
Where a minor enters into a contract involving the acquisition of an interest in property of a permanent nature, with continuing obligations attached to it, he may repudiate71 it at his option either before72 or within a reasonable time after attaining his majority.73 There is judicial authority recognising five types of contract falling within this general category. Whether or not this list is exclusive is not clear:74 what does seem plain, however, it that there is no general principle to the effect
45 Ch. D. 430, at 439 (1890).
Repudiation must be in toto; the minor may not affirm provisions that are beneficial to him while repudiating those that are not: Henderson v Minneapolis Steel & Machinery Co.,  3 W.W.R. 613,  1 D.L.R. 570.
Chitty, vol. 1, 308, para. 557.
Cf. id., 308–309, para. 557.
that any contract conferring an interest in a subject-matter of a permanent nature is valid until repudiated.75
The five types of contract are as follows:
(i) Contracts for the Lease or Purchase of Lands
Where a contract made by a minor involves the acquisition of an interest in property of a permanent nature with continuing obligations attached to it, the minor may, at his option, avoid the contract either before or within a reasonable time after he attains majority.76 Until he avoids the contract, he is bound by the obligations under it.
(ii) Contracts to Subscribe for the Purchase of Shares
Similarly, a contract by a minor to purchase shares will bind him until he repudiates it during minority or within a reasonable time thereafter.77
(iii) Marriage Settlements
A marriage settlement, or an agreement for a marriage settlement, may be avoided by a minor during minority or
Cf. id., 309, para. 557, and the English Law Commission’s Working Paper No. 8, Minors’ Contracts, para. 2.12 (1982).
Cf. Paget v Paget, 11 L. R. Ir. 26 (C.A., 1882).
Dublin and Wicklow Ry. v Black, 8 Exch. 181, 155 E.R. 1310 (1852), North Western Ry. v M’Michael, 5 Exch. 114, 155 E.R. 49 (1850), Cork & Bandon Ry. Co. v Cazenove, 10 Q.B. 935, 116 E.R. 355 (1847), Newry & Enniskillen Ry. Co. v Coombe, 3 Exch. 565, 154 E.R. 970 (1849), Birkenhead Lancashire Ry. Co. v Pilcher, 5 Exch. 121, 155 E.R. 53 (1850).
within a reasonable time thereafter.78 The minor must either accept or reject the settlement in its entirety.79
(iv) Partnership Agreements
An infant partner is not liable to creditors of the partnership for partnership debts contracted during his infancy,80 although he may not prevent their discharge out of the partnership assets.81 During minority or within a reasonable time of reaching full age, he may repudiate the partnership contract altogether82 but if he fails to do so he will be liable for all debts contracted since he came of age on account of having held himself out as a continuing partner.83
(v) Insurance Contracts
There is Irish authority for including insurance contracts, involving an obligation to pay premiums periodically, within the category of positive voidable contracts. In Stapleton
Burnaby v Equitable Reversionary Interest Society, 28 Ch. D. 416 (1855), Cooper v Cooper, 13 App. Cas. 88 (1888), Duncan v Dixon, 44 Ch. D. 211 (1890), Edwards v Carter,  A.C. 360. The fact that a person under the age of 18 now ceases to be a minor on marrying (Age of Majority Act 1985, section 2(1)) should be noted in this context.
Codington v Codington, L.R. 7 H.L. 854 (1875), Hamilton v Hamilton,  1 Ch. 396.
Lovell and Christmas v Beauchamp,  A.C. 607, at 611.
Goode v Harrison, 5 B. & Ald. 147, 106 E.R. 1147 (1821).
Goode v Harrison, supra. The minor may also expressly adopt the contract on reaching full age: cf. Milliken v Milliken, 8 Ir. Eq. Rep. 16 (Blackburne, M.R., 1845), In the Matter of the Estate of Tottenham; Ex Parte Ingram & Harrison, 17 L. R. Ir. 174 (Monroe, J., 1886).
v Prudential Assurance Co. Ltd.,84 in 1928 the High Court held that a contract for life insurance made by a minor was “a continuing contract, and the [minor] if she wished to repudiate it on attaining full age was bound to do so within a reasonable time.”85
The length of time after reaching full age during which a person may avoid a contract that he made during his minority will depend on the circumstances of each case. A minor may not plead ignorance of his right to repudiate as an excuse for failing to exercise that right within a reasonable time.86 On repudiation by a minor, the following rules apply:
he need not perform obligations that have not yet accrued;
he must meet obligations that have already accrued;87
he can recover nothing that he has paid under the contract unless there has been a total failure of consideration.88
62 I.L.T.R. 56 (High Ct., 1929).
Id., at 56 (per Sullivan, P.).
Carnell v Harrison,  1 Ch. 328. See also Edwards v Carter, supra, fn.78, In re Alexandra Park Co., L.R. 6 Eq. 512 (1868).
Blake v Concannon, I.R. 4 C.L. 323 (1870). The text book writers are not in agreement on this point. In favour of the principle espoused in Blake v Concannon, are Chitty, vol. 1, 312, and Anson, 190. Opposed to that principle and favouring the view that the minors’ repudiation of the contract retrospectively relieves him of liability for accrued obligations is Cheshire & Fifoot, 387.
Stapleton v Prudential Assurance Co. Ltd., 62 I.L.T.R. 56, at 56 (High Ct., per Sullivan, P., 1928), Cork & Bandon Ry. v Casenove, supra, fn. 77; cf. North Western Ry. v M’Michael, supra, fn. 77, Newry and Enniskillen Ry. v Coombe, supra, fn. 77, Ex Parte Jones. In re Jones, 18 Ch. D. 109, at 108 (per Jessel, M.R., 1881).
(3) Contracts “Absolutely Void” Under the Infants Relief Act 1874
Section 1 of the Infants Relief Act 187489 provides that:
“All contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void: provided always that this enactment shall not invalidate any contract into which the infant may, by an existing or future statute, or by the rule of common law or equity, enter, except such as now by law are voidable.”:
The effect of this section is not totally clear but a few points may be noted. It applies to only the contracts specified in it, namely
contracts for the repayment of money lent or to be lent to a minor;
contracts for goods supplied or to be supplied to a minor;90
all accounts stated with minors.91
37 & 38 Vict., c. 62.
The expression “goods supplied” extends to goods that are exchanged: Pearce v Brain,  2 Q.B. 310 (Q.B.Div.).
Cheshire & Fifoot, 391 (footnotes omitted) state:
“An account stated is an admission by A. that a certain sum is due from him to B. Such an admission was at one time regarded as raising an implied promise to pay the amount stated, but it was always the rule at common law that an infant could not thereby bind himself, even though the items of account consisted of necessaries. In the modern law, however, an account stated is only prima facie evidence of a debt which may be rebutted by contrary evidence, and therefore its inclusion in the contracts declared by the Act to be void is almost superfluous.”
The section does not affect the law as to contracts for necessaries or contracts of apprenticeship, service and education mentioned above. Nor does it apply to cases where money is lent or goods supplied by the minor or accounts are stated by him with others.
As a leading commentator noted, “[i]t has …. long been recognised that this section does not mean what it says”.92 What it does mean, however, is not so clear. The expression “absolutely void”93 has given rise to varying interpretations in different contexts. In some cases94 the words have been given their full effect, but it would appear clear that nevertheless the minor is unable to recover back money paid on account of goods when they have been consumed or used by him: only where there has been a total failure of consideration may the minor recover.95 Moreover, the property in non-necessary goods sold to a minor would appear
Cohn, Validity of Guarantees for Debts of Minors, 10 M.L.R. 40, at 49 (1947).
In contrast to “voidable”, used in the same section: cf. the Chief Justice’s Law Reform Committee of Victoria’s Report on Infancy in Relation to Contracts and Property, para. 18 (1970).
In Coutts v Browne-Lecky,  K.B. 104, a guarantee by an adult of a minor’s overdraft was held to be void on account of the fact that the princpal debt was absolutely void under the section. (See further infra, pp. 34–35). In R. v Wilson, 5 Q.B.D. 28 (1879) a minor was acquitted of leaving the country with the intention of defrauding creditors on the ground that, since their claim rested on contracts declared “absolutely void” by the section, the minor had, in fact, no creditors. In Ex parte Jones. In re Jones, 18 Ch. D. 109 (C.A., 1881), a bankruptcy petition against a minor was dismissed on the same ground.
Valentini v Canali, 24 Q.B.D. 166 (Q. B. Div., 1889): Pearce v Brain,  2 K.B. 310 (Q. B. Div.). In these two cases, especially the first, the benefit acquired by the minor from the contract was small. Cf. Bo-Lasse v Josiassen,  4 W.W.R. 317 and see the Law Reform Commission of Western Australia’s Working Paper No. 2, Project No. 25: Legal Capacity of Minors, paras. 132–134 (1978).
to pass on delivery96 (at all events where the parties so intend97) or perhaps even without delivery.98 On the important question of whether a minor may sue upon contracts falling within the scope of the section, there is no direct authority,99 and the commentators are divided.100 The view that has gained most support is that a minor may sue on such contracts.
Contracts Falling Within the Scope of Section 2 of the Infants Relief Act 1874
Section 2 of the 1874 Act provides as follows:
“No action shall be brought whereby to charge any person upon any promise made after full age to pay any
See Stocks v Wilson,  2 K.B. 235, at 246.
Cf. Clark, Contracts for the Sale of Non-Necessary Goods; Vendor’s Remedies Against an Infant Purchaser, U. Tasmania L. Rev. 85, at 88 (1978).
See Watts v Seymour,  2 Q.B. 647, at 654. Cf. the Canadian decision of Prokopetz v Richardson’s Marina Ltd., 93 D.L.R. (3d) 442 (B.C. Sup. Ct., MacDonald, J. 1979), critically analysed by Clark, Property Passing Under a Void Contract – Minor Difficulties, 26 McGill L. J. 110 (1980), and by the same author, Contracts for the Sale of Non-Necessary Goods; Vendors’ Remedies Against an Infant Purchase, U. Tasmania L. Rev. 85, at 89–90 (1978).
In Thornalley v Gostelow, 80 I.L.T.R. 507 (1947) and Godley v Perry,  1 W.L.R. 9, claims by minors were successful, but in neither case was the defence of infancy pleaded or discussed.
Chitty, states that “it may very well be that the minor himself can sue ….” (See also id., pp. 237–8, para. 517). Also in favour of this view are Cheshire & Fifoot, 391, who state that “[d]espite the wording of the Act, it has long been the opinion of the profession that the position has not been altered [and that the other contracting party will be bound]”. Against the view that a minor may sue is Treitel, 358–9.
debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age.”
This section applies to all contracts made by a minor other than contracts for necessaries, education or services (which are binding on him) and contracts for the acquisition of some interest in property of a permanent character (which are voidable by him).101
Until its abolition by statute in 1981,102 the type of contract affected by section 2 which led to most reported litigation103 was the promise to marry.104 The question frequently arose as to whether a minor on reaching full age had made a new promise to marry (in which case he or she would be bound) or had merely ratified a promise to marry made during minority (in which case, in accordance with section 2 of the 1874 Act, he or she would not be liable). This distinction had been criticised as being “perplexing”105 and “somewhat subtle”106 and as leading to “some extreme refinements”.107
In Coxhead v Mullis, 3 C.P.D. 439 (1878), it was unsuccessfully argued that section 2 applied only to the ratification of the three contracts specifically declared void by section 1.
Family Law Act 1981, section 2.
E.g. Ditcham v Worrall, 5 C.P.D. 410 (1880), Northcote v Doughty, 4 C.P.D. 385, Coxhead v Mullis, supra, fn. 67, Holmes v Brierley, 4 T.L.R. 647 (1888).
See generally, Shatter, ch. 3.
Cheshire & Fifoot, 393. See also, to similar effect, the Report of the Committee on the Age of Majority, (The “Latey Committee”) para. 388 (Cmd. 344, 1967).
Cheshire & Fifoot, 394.
Anson, 189. See also Shatter, 32, Treitel, 365, (1970), Treitel, The Infants Relief Act 1874, 73 L. Q. Rev. 194, at 210–211 (1957).
In Belfast Banking Co. v Doherty,108 in 1879, it was held that an action is maintainable by a bona fide indorsee for value, against an acceptor of a bill of exchange, accepted by the latter after attaining full age, for a debt contracted by him during minority (though not in respect of necessaries). It is clear that considerations of practical commercial convenience weighed heavily with the Court. Fitzgerald, J. said:
“Without the aid of negotiable security the mercantile and financial operations of the empire could not be carried into effect; and we should hesitate before yielding to a contention which might materially and prejudicially affect the position of the bona fide holder for value. The Defendant contends that although he accepted the security, being of full age and of capacity to do so, and delivered it to the drawer in order that the drawer should negotiate it, and obtain money on it, and although the drawer was thus enabled to pass it to Plaintiffs for full value, he is not liable to them, as the consideration was a debt contracted by him whilst under age. I think that we ought not to give such an effect to the 2nd section of the statute, unless the legislature has so clearly expressed an intention to that effect as to cause us to do so…. We should observe that the 2nd section of the Act of 1874 does not declare that the new promise made after full age shall be ‘absolutely void’ as in the 1st section, but treats it as a contract resting on a void or illegal consideration, and therefore that no action shall lie on it. The 2nd section is but declaratory of the necessary legal consequences. It seems to me, however, that the true reading of the 2nd section is, that as between the parties to the new promise no action lies; but where the new promise is contained in a negotiable security the rights of a bona fide transferee for value are not affected or abridged. The bill in question has two aspects: As between the Defendant and Wilson [the drawer] it is a new promise to pay the debt contracted during infancy, and so cannot be enforced by Wilson, the consideration being illegal; but being in the form of a negotiable instrument, when indorsed to a bona fide holder for value, it becomes a promise to pay him the sum mentioned in the security according to its tenor and effect; and it matters not to the holder what was the consideration, or whether it was illegal by statute or otherwise.