CHAPTER 3 COMPARATIVE ASPECTS
In this chapter we will look briefly at the main features of the law in other jurisdictions and at structures for reform proposed, and in some cases enacted, elsewhere.
Northern Ireland
The law in Northern Ireland is in substance similar to the law in this jurisdiction. One important difference is that the age of majority is 18 in all cases, regardless of whether a person may have married under that age.
England and Wales
In England, the law is also similar but, as will be seen, the English Law Commission has made detailed proposals for reform in its Working Paper, Minors’ Contracts, published in 1982, subsequently revised in its Report, Law of Contract: Minors’ Contracts (Law Com. No. 134, 1984).
Scotland1
Persons under the age of majority (18 years) are divided into two categories: pupils and minors. Pupils are boys under 14 years of age and girls under 12 years of age. Subject to what is said below, a pupil has not the capacity to enter a contract on his own behalf, but a tutor may enter certain contracts on his behalf. The pupil’s father is normally tutor; if the father is dead, the mother will be tutor. A parent has power to nominate a tutor after his or her death; in default, the Court will do so.
A tutor may enter into contracts on behalf of the pupil
1
See the Scottish Law Commission’s Consultative Memorandum No. 65, Legal Capacity and Responsibility of Minors and Pupils, Part II (1985).
where they are consistent with the purpose of his office. Contracts designed to preserve rather than dispose of the pupil’s property will normally fall within the scope of the tutor’s authority. Purchases from a tutor may not be challenged but, where the tutor has acted outside his authority, he becomes liable for breach of trust. The tutor may protect himself against liability by obtaining the authority of the Court for a proposed transaction.
At any time within four years after reaching full age, the pupil may challenge a contract entered into by a tutor on the grounds of minority and lesion. Challenges on these grounds are rare and are difficult to sustain.
The authorities are divided on the question whether a pupil, acting without a tutor, may ever enter an enforceable contract. On one view he may not, but on another he may do so to the extent that the contract is beneficial to him. On the latter view, it is not clear whether the pupil is also liable on the contract: there is authority supporting the imposition of liability, at all events to the extent that the minor receives a benefit from the contract.
Minors are children between the age of pupillarity and majority. They have a somewhat greater contractual capacity than have pupils.
Where a minor has a curator (usually a father), contracts entered into by the minor with the curator’s consent will bind him subject to challenge (within minority or the quadriennium utile) on the ground of lesion. Where a minor who has a curator enters into a contract without the curator’s consent, that contract will be void unless either (a) it relates to employment or to a trade or business carried on by the minor; (b) the minor represented that he was of full age, and the other party reasonably believed him; (c) the minor on reaching full age homologates (i.e. confirms) the contract made during minority (unless the confirmation was made under duress or misrepresentation or in error of his legal rights).
Where a minor does not have a curator, he has the same2 capacity to contract as if he were of full age, but with the
2
Subject to relatively insignificant limitations: cf. the Scottish Law Commission’s Consultative Memorandum No.65, Legal Capacity and Responsibility of Minors and Pupils, para. 2.8 (1985).
right to challenge a particular contract on the ground of lesion (within minority or the quadriennium utile).
The same is true of a minor who has been forisfamiliated (i.e. who has set out on an independent career with the consent of his or her father or who has married).
What constitutes lesion such as will enable a pupil or minor to avoid a contract depends on the particular circumstances of the case. Clear examples of lesion arise where the pupil or minor has given something away gratuitously or has disposed of it for a serious undervalue.
Generally, where the pupil or minor has entered into a contract with the consent of his or her tutor or curator, as the case may be, a greater degree of lesion will have to be established than in a case where he has done so alone.
United States of America
The law relating to minors’ contracts in the United States of America3 bears many resemblances to Irish law. In a number of States, however, statutes have altered the position significantly. The age of majority in the overwhelming majority of states is 18; in Alabama, Nebraska and Wyoming it is 19, and in Mississippi it is still 21.
The position in the majority of States is that, in general,
3
See generally, Cnapp, chapter 2, H.H.W., The Status of Infancy as a Defense to Contracts, 34 Virginia L. Rev. 839 (1948), Navin, The Contracts of Minors Viewed from the Perspective of Fair Exchange, 50 N. Carolina L. Rev. 517 (1972), Denton, Infants’ Contracts: Rights and Remedies, 28 Tenn. L. Rev. 395 (1961), Bottiger, Infants’ Contracts and their Enforcement, 35 Wash. L. Rev. 465 (1960), Void, Sales Deals with Minors, 35 Dakota L. Rev. 80 (1958), the English Law Commission’s Working Paper No. 81, Minors’ Contracts, 173–175 (1982) and the Scottish Law Commission’s Consultative Memorandum No. 65, Legal Capacity and Responsibility of Minors and Pupils, paras. 4.6–4.8 (1985).
contracts by minors are voidable by them during minority or within a reasonable time of reaching full age.4 Statutes in a number of States (including California, Iowa, Kansas and Utah) specifically provide that failure to disaffirm within a reasonable time after reaching majority will constitute implied affirmation on the contract. Other States (including Maine and Oklahoma) require that ratification must be in writing. In some States, where the contract relates to real property it is void ab initio. If a minor misrepresents his age in making the contract, the minor may be estopped from asserting his minority or may be held liable for tortious injury to the third party.5 In some States (including Indiana, Iowa, Kansas, Michigan and Washington),6 statutory provisions prohibit disaffirmance by the minor in such a case. Where there has been no misrepresentation as to age, in most States the minor on disaffirmance may recover his or her own consideration even though the minor has consumed or otherwise disposed of the goods passing to him under the contract.7 In other States, however, the minor is obliged to account for depreciation for the use of the item. Where the minor still has in his possession the property which passed to him or her under the contract, the minor must return it to the other party. Contracts for necessaries bind the minor. In certain States (including Iowa, Kansas, New York, Utah and Washington) a minor may not disaffirm any of his reasonable contracts made while engaged in business.
Contracts for legal services, at all events in respect of
4
Cf. Edge, Voidability of Minors’ Contracts: A Feudal Doctrine in a Modern Economy, 1 Georgia L. Rev. 207 (1967), Anon., Casenote, 29 Chic.– Kent L. Rev. 361 (1951), McKenzie, Casenote, [1951] U. Illinois L. Forum 325.
5
Cf. Greenwald, Contracts: Infants’ Disaffirmance: Infants’ Right to Void, 52 Marquette L. Rev. 437 (1969), Acchambzau, Infancy – Shield or Sword? 36 Dicta 217, at 211ff (1959).
6
Cf. Bottiger, Infants’ Contracts and their Enforcement, 35 Wash. L. Rev. 465, at 469–473 (1960).
7
Cf. Regan, Note: Restitution in Minors’ Contracts in California, 19 Hastings L. J. 1199 (1868), von Biberstein, Comment: Contracts – Liability of Minor Upon Disaffirmance, 37 N. Carolina L. Rev. 484, at 485 (1959), Butrum, Casenote, 12 U. of Detroit L. J. 99 (1949).
litigation or the protection of the minor’s personal liberty or reputation, will generally bind the minor.8
Where a minor repudiates or disaffirms a contract for services, he will normally be able to recover on a claim based on quantum meruit.9
Emancipation of a minor generally does not confer on him the contractual capacity of an adult, although it may be taken into consideration as a factor of practical importance in determining whether a transaction entered into by him was one for necessaries. In some States, however – including California, Connnecticut, Florida and Tennessee – emancipation has the effect of enabling minors to enter into binding contracts.10 Former servicemen under the age of majority are also given contractual capacity in certain instances.11