BRITISH COLUMBIA
In 1976, the Law Reform Commission of British Columbia published a Report on Minor’s Contracts.204 The Commission noted in the Introduction to the Report that
“[i]n most instances, although there are significant differences205 in the existing law of Alberta and British Columbia, we have agreed with the ….
201
Id., p. 43. In Alberta, although a minor may legally appoint an agent other than by power of attorney, he or she may not do so legally by power of attorney: see id., p. 19.
202
E.g. under the Marriage Act, the Insurance Act and the Student Loans Guarantee Act.
203
44 of the Report. The Report recommended, however, that the power of the Supreme Court to approve a binding settlement by a female minor, of at least seventeen years of age, in contemplation of marriage, which existed under sections 11 to 13 of the Infants Act, should no longer be specifically retained: id., p. 45. The authors of the Report considered that such a limited power was an anomaly and that cases falling under it should be dealt with appropriately under the legislation that the Report proposed.
204
Law Reform Commission of British Columbia, Report on Minors’s Contracts (LRC 26, 1976). The Report followed a Working Paper on the same subject, published in 1975.
205
The major difference between the two provinces is that in British Columbia there is a counterpart to the Infants Relief Act 1874 but in Alberta there is no similar legislation.
recommendations [in the Report on Infants Contracts published by the Alberta Institute of Law Research and Reform], and have made large-scale use of the Alberta drafting.”206
The main recommendations of the British Columbia Report may be summarised as follows:
(1)
That, except where the law might specifically provide otherwise, a contract made by a minor
(a)
should not be enforceable against him;
(b)
should be enforceable against other parties as if the minor had attained the age of majority.207
(2)
That, if a contract was unenforceable against a minor because of his minority, an action for relief ought to be able to be brought
(a)
by the minor; and
(b)
after the minor had repudiated the contract, by an adult party.208
(3)
That, in any action brought as a result of enactment of the proceeding recommendations, the Court should be able
(a)
to grant to any party such relief by way of compensation or restitution of property or both as is just; and
(b)
on doing so ought to be able to discharge the parties from further obligation under the contract,
provided that no grant of relief should enable the party contracting with a minor to recover more than necessary to restore him to his position before entering the contract.209
208
Id.
209
Id.
(4)
That, in making any such order, the Court should have regard to:
(a)
the circumstances surrounding the making of the contract;
(b)
the subject-matter and nature of the contract;
(c)
in the case of a contract relating to property, the nature and value of the property;
(d)
the age and means (if any) of the minor; and
(e)
all other relevant circumstances.210
(5)
That no special rules shold be devised for minors who are or have been married.211
(6)
That the Report’s recommendations should apply to executed as well as executory contracts.212
(7)
That a contract might be affirmed by a minor who had attained the age of majority, and that thereafter it might be enforced against him.213
(8)
That an adult party should be able, by notice in writing, to require a minor who had attained the age of majority to affirm or repudiate a contract within sixty days from receipt of the notice and that, unless the minor repudiated the contract within that time, it should be enforced against him.214
(9)
That where such a notice was not issued by an adult party the contract, unless repudiated by the
210
Id.
211
Id., at 33.
212
Id., at 34.
213
Id., at 35.
214
Id.
infant within one year after the date upon which he attained majority, should thereafter be enforceable against him.215
(10)
That for the purposes of the recommendations, repudiation of a contract ought to be able to be affected by
(a)
a refusal to perform the same or a material term thereof; or
(b)
the making of a claim for relief under Recommendation 3; or
(c)
the giving of, or the making of reasonable efforts to give oral or written notice of repudiation to the adult party.216
(11)
(1)
That nothing in the recommendations should limit or affect the rule of law whereby a minor was not liable in tort where the tort was in substance a cause of action in contract, provided that, if a minor induced another person to enter a contract by means of fraudulent representations as to the minor’s age or any other matter, the court might take any such representation into account in deciding whether to exercise any of its powers under an enactment of Recommendation 3.
(2)
That a minor should not be held to have induced another person to enter a contract by means of a fraudulent representation as to the minor’s age unless the person to whom the representation was made had reasonable grounds for believing that it was true.
(3)
That a minor should not be held to have induced another person to enter a contract by means of a fraudulent representation as to the minor’s age by reason only of the fact that the minor signed or otherwise adopted a document relevant to the transaction that:
215
Id.
216
Id., at 37–38.
(a)
contained a statement that the minor was 19 years of age or otherwise had contractual capacity; and
(b)
was prepared and tendered by or on behalf of the plaintiff; and
(c)
was preprinted and used by the plaintiff in like transactions.
(12)
(1)
That the Court on an application by a minor or his parent or guardian might by order grant to the minor capacity to enter into all contracts or any description of contracts.
(2)
That the Court should not make such an order unless satisfied that it was for the benefit of the minor and that, having regard to the circumstances of the minor, he was not in need of the protection offered by law to minors in matters relating to contract.
(3)
That a contract made by a minor under any subsisting grant of capacity should be enforceable against him.
(13)
(1)
That a minor, his parent or guardian, or any adult party to the contract might apply to the Public Trustee for a grant of capacity to the minor to enter a particular contract.
(2)
That the Public Trustee should have complete discretion in determining the best interests of a minor under this proposal, but, without restricting the generality of the foregoing, that he might take into account
(a)
the nature, subject-matter, and terms of the contract;
(b)
the requirements of the minor, having regard to his particular circumstances;
(c)
the financial resources available to the minor; and
(d)
the wishes, where they can reasonably be ascertained, of any parent or guardian of the minor.
(3)
That where the Public Trustee refused to
grant to the minor the capacity to enter into a contract, there should be a right of appeal to the Court.
(4)
That a contract entered into by a minor should be enforceable against him if a grant of capacity was made to him under the recommendation.
(5)
That no liability of any kind should attach to the Public Trustee as the result of an exercise of his discretion under the recommendation.217
(14)
That a disposition of property or a grant of a security or other interest therein made under a contract which was unenforceable against a minor should be effective to transfer the property or interest, unless and until the court makes an order under Recommendation 3.218
(15)
That a disposition of property or a grant of a security or other interest therein to a bona fide transferee or grantee for value should not be invalid for the reason only that the transferor or grantor acquired the property under a contract which was unenforceable against a minor.219
(16)
(1)
That a guarantor of an obligation to a minor should be bound by his guarantee to the same extent that he would be bound if the minor were an adult.220
(2)
That the term “guarantor” should include a person who entered into a guarantee or indemnity or otherwise undertook to be responsible for the failure of a minor to carry out a contractual obligation, whether that obligation was enforceable against the minor or not.221
217
Id., at 42.
218
Id., at 43.
219
Id.
220
Id.
221
Id., at 44.