summary of minors contractual liability in the law of persons- chapter of Minority, easy simply understood summary with adjoining case studies included reference to Jacqueline Heaton, 5th Edition textbooks.
Condictio IF MINOR PERFORMED
CONTRACT BUT CONTRACT
REPUDICATED
MINOR CAN CLAIM
Rei PERFOMANCE
Vindicatio
Negotiorium
All the
1. RATIFICATION Resitutio In
• Once guardian has ratified
Integrum Gestio MINORS
contract (tacitly/ expressly)
• Natural obligation converted to
civil obligation CONTRACT ENTERED WITH 3rd part acts on behalf
CONTRACTUAL
•
•
Therefore lawfully enforceable
Ratification works
ASSITANCE BUT TO
DETRIMENT OF MINOR &
PERFORMANCE HAS ALREADY
minor, w/out consent but
to benefit & other liable
for compensation
CAPACITY &
RETROSPECTIVELY
• USED WHEN MINOR WANTS TO
SUE
OCCURRED
stuff
• EDELSTIEN V EDELSTEIN
Misrepresentation
A MINOR MISREPRESENTS TO ANOTHER PERSON THEY ARE A MAJOR.
CONTRACTUAL LIABLITY
Without assistance
• Roman law- Resitutio denied (implies contract binding)
• If no assistance- minor cannot claim performance
Unjustified With assistance
• Could be liable based on Resitutio in Integrum if assistance used.
Enrichment • Not necessary to use above- minor can claim based on contract being
unenforceable.
PERSON CANNOT BE UNDULY ENRICHED DELICUTAL LIABLITY
@ ANOTHER PERSONS EXPENSE IF… • Minor can be liable for damages because his misrepresentation caused:
PERSONS ESTATE INCREASES @ OTHER 1. Unlawful act
PERSONS EXPENSE W/OUT LEGAL 2. Damage
GROUNDS TO JUSTIFY 3. wrongfulness
BENEFIT THEORY REMEDY: ESTOPPEL
• NEL V DIVINE HALL & CO LOUW V MJ AND H TRUST
• EDELSTEIN V EDELSTEIN
Other Arrangements
• Minor can enter into contract w/out assistance when to his benefit, example- a contract which
Remedies & RULES
will extinguish minors debt, such contract would be valid.
• HOWVER minor cannot enter into contract unassisted whereby such contract extinguishes debt
owed to a minor.
• If enters with assistance but ACT without assistance- performance is not recoverable.
• Minor enters into agreement without assistance- performance is invalid
• Disadvantage- minors debt extinguished
• I.t.o real agreement- right transferred to minor and valid even if acted w/out assistance.
BUT a minor cannot transfer the right to another- this would be invalid
EXCEPTION NON ADIMPLETI Statutory Exceptions
CONTRACTUS Certain Acts have exceptions that minor cant have
contractual liability w/out guardians assistance.
• Other part cannot rely on ‘minority’
1. @ 12 MINORS CAN CONSENT TO MEDICAL
as defense to void performing i.t,o TREATMENT, BUY CONTRACEPTIVES
contract 2. @ 14 MINORS CAN WITNESS A WILL
• Exceptio non adimpleti contractus= 3. @ 16 MINORS CAN OPEN BANK ACCOUNT &
party cannot claim performance if MAKE OWN WILL
4. @ 18 (MAJORS) CONSENT TO MAJOR
other party hasn’t yet performed
OPERATIONS.
, GENERAL RULES ARE:
1. Minor can only enter into a contract w/out assistance if there
no duties & it improves minors position
2. If duties arise= unenforceable!
3. Ratifying contract means other party must still perform.
Contract can be ratified by guardian (validates contract) or
when minor becomes major he can ratify contract will become
STATUTORY EXCEPTIONS
enforceable
4. When minor has contracted w/out guardians assistance but
guardian wants to claim performance two methods used
1. Condictio- monetary claim
RATIFICATION &
WAYS 2. Rei vindicatio- anything not monetary related
A minor can
be assisted
by guardian
RATIFY CONTRACT EITHER
VERBAL/ WRITTEN INTENTION TO CONSENT
EXPRESSLY/ TACTITLY
Of Guardian 1. RATIFICATION
• Once guardian has ratified contract (tacitly/
expressly)
General rule guardian incurs no • Natural obligation converted to civil
Personal responsibly. obligation
MINORS CONTRACTUAL CAPACITY
Regardless of whether he assisted or acted on • Therefore lawfully enforceable
behalf of the minor • Ratification works RETROSPECTIVELY
BUT
Guardian does become liable IF EDELSTEIN V EDELSTEIN
1. Minor acted as guardians agent • ante nuptial contract of minor concluded
2. He guaranteed minors performance/ bound w/out consent
himself as surety • Therefore VOID
• Cannot be RATIFIED by minor/ guardian
3. Negotiorium gestio (if parent). If a 3rd
ONCE MARRIAGE has taken place
party fulfills parental role in supporting • BECAUSE ratification makes IMPERMISSIBLE
child (clothes, food) parent liable on change of matrimonial property system
negotiorium gestio. • RULING- GUARDIAN can only validate
1. Liability not contractual but “quasi marriage BUT NOT an ANC
contract”
CIVIL UNIONS ACT
Statutory Exceptions • Must be 18 to enter into civil union
Certain Acts have exceptions that minor cant have • No ones consent validates civil unions only
contractual liability w/out guardians assistance. AGE
1. @ 12 MINORS CAN CONSENT TO MEDICAL • ANC can only be ratified on age majority
TREATMENT, BUY CONTRACEPTIVES • Once civil union taken place decision in
2. @ 14 MINORS CAN WITNESS A WILL Edelstein applies
3. @ 16 MINORS CAN OPEN BANK ACCOUNT & MAKE • Ratification not possible- as it has
OWN WILL impermissible change on matrimonial system
4. @ 18 (MAJORS) CONSENT TO MAJOR OPERATIONS.
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