Theme 7- Contractual Capacity of a
Minor
Date Created @October 12, 2023 10:17 AM
Infants less than 7- Foundational Principles
Capacity to Act
No capacity to act
Guardian must act for on behalf of infant
Guardian- includes the ability of juristic acts of behalf of the child
But contract must be prejudicial to infant
e.g. acceptance of donation requires legal guardian
See p183 Bhana & Visser article
Minors 7-18- Foundational Principles
Edelstein v Edelstein 1952 (A) (21- but classified as a minor because of the historical context)
General Rule: When the
Type of contractual capacity a minor Exception: When the guardian’s
Guardians assistance is
has assistance is not required
required
Contract that create an When a minor accepts a contract
Limited capacity to act
obligation for the minor without ant duties e.g. donation
What does ‘’assistance’’ mean of what constitutes an ‘’assisted’’ contract? (read case law in
historical context
She was still considered a minor so her parents signed the antenuptial contract (look at page 9 of
the report)
antenuptial contract- constitute a marriage out of communal property however it has certain
requirements to meet the courts approval
What is a minor’s contract ‘assisted’? 🖊️
Theme 7- Contractual Capacity of a Minor 1
, Informed Ratification Consent
Authority
consent after the fact
Baddeley v Stuttaford & Co v Oberholzer 1921
Clarke 1923 (CPD) • Continuing to use subject of
(NLR) Must By minor @18 & contract upon majority with full
prove that the By legal Guardian knowledge of legal position=
authority Guardian had ratification • Ratification can be by
knowledge of the action or word
terms of contract
to form consent/
ratification
Van Dyk v
SAR&H 1956
(W) Sufficient to
know of the
contract and its
type to provide
consent if there is
nothing
extraordinary in
the terms of the
contract
Emancipation
Authority
Ahmed v Coovadia
Sesing V Minister of
1944 (TPD) •
Police 1978 (W) • Meaning of
Emancipated minor can
Dickens v Daley 1956 Consent by a parents to Emancipation- parent
be sued without
(W) • No specific and medical treatment does may need to release the
guardian’s assistance •
same meaning for not exclude child, the child wants to
Restricted to contracts
emancipation • Factors: emancipation • Parental free themselves from
that arise out of the
age, relationship with neglect does not their parents (the child
sphere that creates
guardian, nature and constitute emancipation wants out) Most children
independence
duration of employment • Emancipation requires are release to go and
(Emancipated merely for
express or implied work
the purpose of
consent of guardian
employment)
Theme 7- Contractual Capacity of a Minor 2
Minor
Date Created @October 12, 2023 10:17 AM
Infants less than 7- Foundational Principles
Capacity to Act
No capacity to act
Guardian must act for on behalf of infant
Guardian- includes the ability of juristic acts of behalf of the child
But contract must be prejudicial to infant
e.g. acceptance of donation requires legal guardian
See p183 Bhana & Visser article
Minors 7-18- Foundational Principles
Edelstein v Edelstein 1952 (A) (21- but classified as a minor because of the historical context)
General Rule: When the
Type of contractual capacity a minor Exception: When the guardian’s
Guardians assistance is
has assistance is not required
required
Contract that create an When a minor accepts a contract
Limited capacity to act
obligation for the minor without ant duties e.g. donation
What does ‘’assistance’’ mean of what constitutes an ‘’assisted’’ contract? (read case law in
historical context
She was still considered a minor so her parents signed the antenuptial contract (look at page 9 of
the report)
antenuptial contract- constitute a marriage out of communal property however it has certain
requirements to meet the courts approval
What is a minor’s contract ‘assisted’? 🖊️
Theme 7- Contractual Capacity of a Minor 1
, Informed Ratification Consent
Authority
consent after the fact
Baddeley v Stuttaford & Co v Oberholzer 1921
Clarke 1923 (CPD) • Continuing to use subject of
(NLR) Must By minor @18 & contract upon majority with full
prove that the By legal Guardian knowledge of legal position=
authority Guardian had ratification • Ratification can be by
knowledge of the action or word
terms of contract
to form consent/
ratification
Van Dyk v
SAR&H 1956
(W) Sufficient to
know of the
contract and its
type to provide
consent if there is
nothing
extraordinary in
the terms of the
contract
Emancipation
Authority
Ahmed v Coovadia
Sesing V Minister of
1944 (TPD) •
Police 1978 (W) • Meaning of
Emancipated minor can
Dickens v Daley 1956 Consent by a parents to Emancipation- parent
be sued without
(W) • No specific and medical treatment does may need to release the
guardian’s assistance •
same meaning for not exclude child, the child wants to
Restricted to contracts
emancipation • Factors: emancipation • Parental free themselves from
that arise out of the
age, relationship with neglect does not their parents (the child
sphere that creates
guardian, nature and constitute emancipation wants out) Most children
independence
duration of employment • Emancipation requires are release to go and
(Emancipated merely for
express or implied work
the purpose of
consent of guardian
employment)
Theme 7- Contractual Capacity of a Minor 2
