4 L. R. Ir. 124 (Q. B. Div., 1879).
It may be argued that the policy of the legislature was to protect parties just emerging from minority, and that, in order to do so effectually, it in substance declares the new promise to be illegal and void. The legislature has not said so. It has, on the contrary, drawn a marked distinction between the engagement entered into during minority – which it absolutely avoids – and the new promise of the adult, as to which it declares only that no action shall be brought on it….”109
The practical effect of this decison was severely circumscribed by the enactment of section 5 of the Betting and Loans (Infants) Act 1892, which will be considered immediately below. But the reasoning of the case would still apply if, for example, the debt did not arise out of a contract of loans or the loan was not void because it was one for necessaries.
Contracts Void Under Section 5 of the Betting and Loans (Infants) Act 1892
A fresh promise given after majority to pay a loan that is void in law, and any negotiable instrument given in respect of such a loan, are “void absolutely as against all persons whomsoever” by virtue of section 5 of the Betting and Loans (Infants) Act 1892.110
A minor may not enforce a contract by an action for specific performance, since the court would not enforce the contract
Id., at 135–137.
55 & 56 Vict., c. 4.
against him.111 But where the minor reaches full age and adopts the contract, thereby becoming bound by it, he may take proceedings for specific performance in relation to it.112
Non-Contractual Transactions Involving Minors
Where a minor is involved in a non-contractual transaction, such as a gift or a disclaimer or discharge, for example, it appears that the minor is not fully bound.113 Thus, if a minor makes a gift of property, whether real or personal, he or she may avoid this at any time on the basis that he or she was by reason of age incapable of giving the necessary assent.114 This rule applies even where the gift is made in the form of a deed.115
Flight v Bolland, 4 Russ. 298, 38 E.R. 817 (1828), Lumley v Ravenscroft,  1 Q.B. 683. In Melville v Stratherne, 26 Gr. 52, (1878), however, Spragge, C. considered that:
“Where a party has already obtained all the benefits that he was to derive from that part of the contract that is in his favour, such a defence [against specific performance] would be most inequitable, and I apprehend would not be allowed to prevail.”
Milliken v Milliken, 8 Ir. Eq. Rep. 16 (Blackburne, M.R., 1845).
Law Reform Commission of Western Australia’s Working Paper No. 2, Project No. 25: Legal Capacity of Minors, para. 1.49 (1978).
Cf. Lloyd v Sullivan, unreported, High Ct., McWilliam, J., 6 March 1981 (1981–39Sp.), at p. 3:
“Gifts made by infants are …. voidable.”
See also the Law Reform Commission of Western Australia’s Working Paper No. 2, Project No. 25: Legal Capacity of Minors, para. 1.49 (1978), Halsbury’s Laws of England, vol. 18, at 369, para. 701 (3rd ed., 1957), disapproving of Taylor v Johnston, 19 Ch. D. 603 (1882).
Law Reform Commission of Western Australia, Working Paper No. 2, supra, para. 1.50, Halsbury, supra, vol. 21, at 160, para. 356.
Where property is given to a minor, it vests in the minor immediately upon the gift being completed.116 A gift inter vivos to a minor may not be revoked subsequently by the donor.117 It seems however that the minor may repudiate the gift on attaining full age, whereupon the estate or item of personal property, as the case may be, reverts to the grantor.118
Liability of Minors in Tort
Where a cause is really founded on the wrongful mode of performance of a contract the injured party may not proceed by framing his action in tort. But a minor will be liable for a tort, even where the injury may have occurred in a contractual setting, if the tort is independent of the contract.119 At what point an act ceases to be merely a misperformance of the contract and becomes instead conduct altogether outside the contract is a different question120 and clearly will depend greatly on the Court’s assessment of the facts of the case in question.
Thus, where a minor hired a horse for riding, he was held not liable in tort for injuring the horse through moderate
Law Reform Commission of Western Australia, Working Paper No. 2, supra, para. 1.50.
Law Reform Commission of Australia, Working Paper No. 2, supra, para. 1.50, Halsbury, supra, vol. 21, at 159, para. 353.
Law Reform Commission of Australia, Working Paper No. 2, supra, para. 1.50, Halsbury, supra, vol. 21, at 158, para. 351.
See Pollock on Contract, 62–63 (13th ed., by P. Winfield, 1950), McMahon & Binchy, 72, Clark, 173–174, Pearce, Fraudulent Infant Contractors, 42 Austr. L. J. 294, at 30–301 (1968).
Cf. Clark, 174: “The test is artificial in the extreme.”
riding121 but, in another case122 involving the hiring of a horse, the minor was held liable in contract where, contrary to the express instructions of the owner, he injured the horse by jumping it.
Liability of Minors for Fraudulent Misrepresentation
A minor who, by fraudulent misrepresentation of fact, has induced another to contract with him, may not be held liable for damages in the tort of deceit, since the imposition of liability in such circumstances would facilitate an evasion of the minor’s contractual immunity.123 Notwithstanding this exemption of the minor from liability, the other party to the contract may avoid the contract.124
The Equitable Doctrine of Restitution
The limits of the doctrine of restitution in respect of benefits acquired by minors “are somewhat ill-defined”.125 The commentators are divided on the question whether the doctrine should be premised upon a false representation by the minor that he is of full age,126 or, more generally,
Jennings v Rundall, 8 Term Rep. 335, 101 E.R. 1419 (1799). See also Fawcett v Smethurst, 84 L.J.K.B. 473 (1914).
Burnard v Haggis, 14 C.B. (n.s.) 451, 143 E.R. 360 (1863). See also Ballett v Mingay,  K.B. 281.
Cf. Payne, The Contractual Liability of Infants, 5 Western L. Rev. 136, at 150 (1966).
Cf. Payne, supra, at 151. See also Atiyah, The Liability of Infants in Fraud and Restitution, 22 Modern L. Rev. 273, at 277 (1959).
Cheshire & Fifoot, 396.
Cf. Anson, 200.
upon any false representation of fact by the minor,127 or simply on the right of the other party to recover his property, whether or not the minor was guilty of any fraud in either the legal or equitable sense of the term.128
It seems clear, at all events, that restitution may be ordered where the minor obtains goods by fraud and remains in possession of them.129 Where the minor has obtained the goods by fraud but no longer possesses them the position becomes less certain. Before examining the case-law it is perhaps desirable to mention briefly the competing policy considerations.
From the standpoint of minors, it can be argued that for the case to go beyond restitution of the very goods obtained to impose liability to repay their value, or to restore another article for which they have been exchanged, “would in effect be to enforce a contract declared void by statute”.130 The general approach of the law has been “to safeguard the weakness of [minors] at large, even though here and there a juvenile knave slipped through”.131 From the standpoint of the parties contracting with minors – especially fraudulent minors – it can be argued that a restitutionary principle limited to cases where the minor retains the goods or property exchanged for these goods would allow some minors to profit on a rather arbitrary principle.
The decisions on the question are difficult to reconcile. The narrow approach was favoured in the English case pf
Cf. Payne, The Contractual Liability of Infants, 5 Western L. Rev. 136, at 151 (1966) referring to this view, but not endorsing it.
Atiyah, The Liability of Infants in Fraud and Restitution, 22 Modern L.Rev. 273, at 287 (1959).
Cf. Clarke v Cobley, 2 Cox 173 (1798), Lempriere v Lange, 12 Ch. D. 675 (1879). See further Pearce, Fraudulent Infant Contractors, 42 Austr. L. J. 294, at 298–299 (1968).
Cheshire & Fifoot, 397.
Leslie (R.) Ltd. v Sheill,  3 K.B. 607, at 612 (per Lord Summer).
Leslie (R.) v Sheill,132 where A.T. Lawrence, J. said that:
“If when the action is brought both the property and the proceeds are gone, I can see no ground upon which a court of equity could have founded jurisdiction.”
In the same case Lord Summer expressed the view that:
“the whole current of decisions down to 1913, apart from dicta which are inconclusive, went to show that when an infant obtained an advantage by falsely representing himself to be of full age equity required him to restore his ill-gotten gains, or to release the party deceived from obligations or acts in law induced by the fraud, but scrupulously stopped short of enforcing against him a contractual obligation entered into while he was an infant, even by means of a fraud …. Restitution stopped where repayment began.”133
The contrary approach had been favoured in 1913 in the case of Stocks v Wilson134 where a minor who had obtained goods by misrepresenting his age and had later sold them was held accountable for the proceeds of sale.
The question has not been resolved in the Irish courts.135 Decisions in other common-law jurisdictions are divided,136 and academic commentators take opposing views.137 In a
 3 K.B. 607, at 627.
 3 K.B., at 618.
 1 K.B. 235.
Favouring the wider view is Campbell v Ridgely, 13 V.L.R. 701 (1887).
Cheshire & Fifoot, 397, favour a narrow approach. Favouring a somewhat wider view are Atiyah, The Liability of Infants in Fraud and Restitution, 22 Modern L. Rev. 273, at 290 (1959), Payne, The Contractual Liability of Infants, 5 Western L. Rev. 136, at 152 (1966).
recent text on Irish contract law, Dr Robert Clark expresses138 the hope that the wider view of equitable restitution may prevail in Ireland.
Guarantees and Indemnities139
It appears that a guarantee of a loan to a minor that is “absolutely void” is itself void. This was held in Coutts & Co. v Brown-Lecky,140 in relation to guarantees by adults of a minor’s overdraft from a bank. Oliver, J. stated that since there was no debt, “for the Act of 1874 says so”,141 it was not possible to make a legally binding guarantee in respect of credit advanced to a minor for the purchase of non-necessary goods or services. On the other hand, an indemnity in respect of such a loan or credit will be binding,142 since an indemnity is not collateral to any legal liability on the part of another person. The legal reasoning behind this distinction has been described as “impeccable”,143 but whether it represents a sound policy has been doubted.144
This distinction between guarantees and indemnities has been widely criticised145 on the basis that minority is a
See Cohn, Validity of Guarantees for Debts of Minors, 10 Modern L. Rev. 40 (1947), Steyn, Guarantees: The Co-Existiveness Principle, 90 L. Q. Rev. 246 (1974).
 K.B. 104.
 K.B., at 106.
Yeomen Credit Ltd, v Lather,  2 All E.R. 294, noted by Furmston, 24 Modern L. Rev. 644 (1961).
English Law Commission, Working Paper No. 81, Minors’ Contracts, para. 11–10 (1982).
Cf. infra, pp. 155–156.
Furmston, 24 Modern L. Rev. 648 (1961), Cohn, 10 Modern L. Rev. 40 (1947), Evans, The Need for Reform in the Law of Infants’ Contracts – Some Commments on the Latey Report, Auckland U. L. Rev. 65, at 70–71 (1969).
personal privilege merely, and it has not been followed in some Canadian decisions.146 In the British Columbia case of First Charter Financial Corporation v Musclow,147 in 1974, Craig, J. stated, obiter:
“I do not agree with …. Coutts v Browne-Lecky. I think it is wrong, in principle, to allow a person who has guaranteed an infant’s financial obligation to contend successfully that he is not liable because the infant’s contract which he guaranteed is void when he has made the guarantee knowing that the infant could not be liable for the debt and knowing, too, that the other party would not have entered into the contract unless the adult had guaranteed the debt.”
Cf. C.L. Hagan Transportation Ltd. v Canadian Acceptance Corporation,  S.C.R. 491, Edmonton Airport Hotel Co. v Credit Foncier Franco-Canadien,  S.C.R. 491.
49 D.L.R. (3d) 138, at 145 (B.C.S.C., 1974).