Law of Persons :STUDY THEME 7
CONTRACTUAL CAPACITY OF MINORS
FOUNDATION
Age is an imperative factor affecting status as well as capacity of
individuals.
Infants as developed by common law, are children up to 7 years old) and
they have no capacity to perform juristic acts, meaning that they cannot
enter contracts and
-If they do, those contracts will be void with no legal effect and the parties
must be restored to the same position as they were before the contract.
-Infants can acquire rights and duties of contracts only if their guardians
concludes the contract on their behalf.
-The contract entered by the guardian in respect of the infant must be to the
infant’s benefit.
-In this way, the infant is liable to the contract, and the consequences of the
contract lies upon the infant.
Children from 8 years up to 17 years are classified as minors and they have
limited capacity to enter contracts.
-This means that minors need guardian assistance to enter valid contracts
however, if a contract imposes no obligations to the minor, then they can
independently enter the contract without assistance.
-The contract will be binding on the minor and not the guardian.
-If a minor enters a contract without assistance of a guardian, it becomes
a limping contract which means that it is binding on one party and not
binding on the other party.
ASSISTED MINORS UNNASSISTED MINORS
*Incur binding contractual *Cannot incur binding contractual
obligations in the same way as obligations.
majors. (liable ex contractu)
1
, *Contract entered is valid. *Contract entered is voidable.
ASSISTED MINORS:
CASE LAW
EDELSTEIN V EDELSTEIN NO 1952
-The court outlined the necessity of consent and assistance from a guardian in
order to enable a minor to enter a valid ante-nuptial contract. This decision
portrays the essence of the limited contractual capacity of minors and the
requirement of guardian’s assistance in order to validate a contract.
FORMS OF ASSISTANCE :
INFORMED CONSTENT
-Minors have limited contractual capacity and need guardian assistance in order
to enter valid contracts.
-The limitations on their capacity is to protect them from the folies of the
youth and inexperience.
-For the guardian to have assisted the minor with the contract , they must give
informed consent to the contract.
-Informed consent can happen if the guardian actively and knowingly gives the
green light to the contract and understands the essence of the contract.
-They must know the important terms of the contract and the surrounding
circumstances.
The consent given may either be express (writing and signed) or tacit
(silent ,through actions).
-If the guardian meets all the factors of informed consent , they would have
validly assisted the minor with the contract, and the minor is therefore bound to
the contract.
-Guardians do not have to be physically present when the minor enters the
contract as their prior consent surfaces.
The theme of informed consent is permission.
-If the contract is beneficial to the minor than the guardian is obliged to assist
and shall the guardian not assist , an order will be made, or the court will assist
itself.
CASE LAW
BADDELEY v CLARKE 1923
2
CONTRACTUAL CAPACITY OF MINORS
FOUNDATION
Age is an imperative factor affecting status as well as capacity of
individuals.
Infants as developed by common law, are children up to 7 years old) and
they have no capacity to perform juristic acts, meaning that they cannot
enter contracts and
-If they do, those contracts will be void with no legal effect and the parties
must be restored to the same position as they were before the contract.
-Infants can acquire rights and duties of contracts only if their guardians
concludes the contract on their behalf.
-The contract entered by the guardian in respect of the infant must be to the
infant’s benefit.
-In this way, the infant is liable to the contract, and the consequences of the
contract lies upon the infant.
Children from 8 years up to 17 years are classified as minors and they have
limited capacity to enter contracts.
-This means that minors need guardian assistance to enter valid contracts
however, if a contract imposes no obligations to the minor, then they can
independently enter the contract without assistance.
-The contract will be binding on the minor and not the guardian.
-If a minor enters a contract without assistance of a guardian, it becomes
a limping contract which means that it is binding on one party and not
binding on the other party.
ASSISTED MINORS UNNASSISTED MINORS
*Incur binding contractual *Cannot incur binding contractual
obligations in the same way as obligations.
majors. (liable ex contractu)
1
, *Contract entered is valid. *Contract entered is voidable.
ASSISTED MINORS:
CASE LAW
EDELSTEIN V EDELSTEIN NO 1952
-The court outlined the necessity of consent and assistance from a guardian in
order to enable a minor to enter a valid ante-nuptial contract. This decision
portrays the essence of the limited contractual capacity of minors and the
requirement of guardian’s assistance in order to validate a contract.
FORMS OF ASSISTANCE :
INFORMED CONSTENT
-Minors have limited contractual capacity and need guardian assistance in order
to enter valid contracts.
-The limitations on their capacity is to protect them from the folies of the
youth and inexperience.
-For the guardian to have assisted the minor with the contract , they must give
informed consent to the contract.
-Informed consent can happen if the guardian actively and knowingly gives the
green light to the contract and understands the essence of the contract.
-They must know the important terms of the contract and the surrounding
circumstances.
The consent given may either be express (writing and signed) or tacit
(silent ,through actions).
-If the guardian meets all the factors of informed consent , they would have
validly assisted the minor with the contract, and the minor is therefore bound to
the contract.
-Guardians do not have to be physically present when the minor enters the
contract as their prior consent surfaces.
The theme of informed consent is permission.
-If the contract is beneficial to the minor than the guardian is obliged to assist
and shall the guardian not assist , an order will be made, or the court will assist
itself.
CASE LAW
BADDELEY v CLARKE 1923
2
