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At common law persons under the age of 21 were designated "infants" and had only a limited capacity to contract. From January 1, 1970, the Family Law Reform Act 1969 reduced the age of majority to 18 and authorised the term "minor" as an alternative to "infant." "Minor" is now the preferred term. The capacity of a minor to contract is still regulated by the common law, modified by the Minors' Contracts Act 1987 which repealed a troublesome statute, the Infants Relief Act 1874. The general principle is that a contract made by a minor with an adult is binding on the adult but not on the minor. If, after attaining his majority, he ratifies it by an act confirming the promise he made when a minor, he is bound. There need be no consideration for the act of ratification. A contract by a minor is not void and any money or property transferred by him under the contract can be recovered only if there has been a total failure of consideration. There are three exceptional cases where a minor is to some extent bound. Necessaries. A minor is bound to pay for necessaries supplied to him under a contract. The Sale of Goods Act 1979 s.3, re-enacting the Act of 1893, provides: "… where necessaries are sold and delivered to an infant (or minor) … he must pay a reasonable price therefore. 'Necessaries' in this section means goods suitable to the condition of life of such infant (or minor) … and to his actual requirements at the time of sale and delivery." "Necessaries" are those things without which a person cannot reasonably exist and include food, clothing, lodging, education or training in a trade and essential services. The "condition of life" of the minor means his social status and his wealth. What is regarded as necessary for the minor residing in a stately home may be unnecessary for the resident of a council flat. Whatever the minor's status, the goods must be suitable to his actual requirements-if he already has enough fancy waistcoats, more cannot be necessary: Nash v. Inman  2 KB 1, CA. The nature of the minor's liability for necessary goods is uncertain. The fact that the Sale of Goods Act makes him liable only for goods "sold and delivered" and to pay, not any agreed price, but a reasonable price, suggests quasi-contractual liability-he must pay, not because he has contracted to do so, but because the law requires him to recompense the seller for a benefit conferred and accepted. Some dicta support this view but others treat the minor's liability as contractual. In Roberts v Gray  KB 520, CA, a minor was held liable for his failure to perform a contract for a tour with the plaintiff, a noted billiards player. It was a contract for the instruction of the minor. The contract was wholly executory and but it was held that the contract was binding on him from its formation. It may be thought that there is a distinction between necessary goods and
When a minor acquires "a subject of a permanent nature … with certain obligations attached to it"-such as a leasehold. Contracts enabling a minor to pursue a career as a professional boxer and as an author have been held binding as being for their benefit. CA. CA. Gray belongs more properly to the category of beneficial contracts of service. below. taken as a whole. So where a young railway porter agreed to join an insurance scheme and to forgo any claims he might have under the Employers' Liability Act. is manifestly for his benefit. but. (Atkin J). in effect. The contract is voidable by the minor-he may repudiate it any time during his minority or within a reasonable time thereafter. It is for the minor's benefit that he should be able to obtain employment which wou1d be difficult if he could not make a binding contract. Beneficial contracts of service. The Minors' Contracts Act 1987. enable the contract to be enforced against him. Where a minor has obtained property under a contract which is not enforceable against him. The law allows him to do so." This may assist the plaintiff where the property is identifiable but where the plaintiff has loaned the money it will usually not be. and for the same reason it is improbable that the minor would be estopped from asserting his true age. It is uncertain whether avoidance here means rescission ab initio or avoidance of only future obligations. Restitution by a minor. the adult party who can neither sue for the price nor get the property back may suffer an injustice. now affords a limited measure of redress. or shares in a company-he is bound by the obligations as long as he retains the subject. require the defendant to transfer to the plaintiff any property acquired by the defendant under the contract or any property representing it. Even where the minor has lied about his age. whether it is retrospective or not.necessary services but this is difficult to justify logically or historically. Scala Ltd  2 Ch 452. s3. it seems that the minor cannot recover money which he has already paid unless there has been a total failure of consideration: Steinberg v. provided that the contract. He must pay the rent or calls on the shares: London & North Western Railway v M'Michael (1850) 5 Ex 114. the contract as a whole being for his benefit: Clements v London & North Western Railway  2 QB 482. Perhaps the contract in Roberts v. The plaintiff will then be able to recover in equity only if he is able to prove that he loaned the money for the express purpose of . A contract is not binding on a minor merely because it is proved to be for the minor's benefit. Acquisition of property with obligations. if it is just and equitable to do so. Where a contract made after the commencement of the Act is unenforceable against a defendant because he was a minor when it was made: "… the court may. he had forfeited his rights under the Act. no action in deceit will lie because this would. Smethurst (1914) 84 LJKB 473. but a contract which would otherwise be binding as a contract for necessaries is not so if it contains harsh and onerous terms: Fawcett v.
but it is not clear that there would be any advantage in doing so. What Exceptions Exist to Create a Binding Contract With a Minor? If every contract with a minor was invalid. This has been changed by statutes in almost every state. That means that the law gives to infants the ability to void. To allow some minors to enter into contracts and/or prevent minors from abusing their position. CA. Leslie Ltd v. The most common justification for the rule is to protect minors from assuming obligations which they are not capable of understanding. since the remedy under section 3 appears to overlap the equitable remedy and does not require proof of fraud. anyone who contracts with an infant or minor is doing so at their own peril. *************************************************** Who is a Minor or Infant? Traditionally. Guarantee of a minor's contract. or exit the contract as they see fit. What is the Rule When Contracting With an Infant? Generally seeking. there are several exceptions including: Sports or Entertainment Contracts . Shiell  3 KB 607. a minor or an infant is anyone under the age of 21. It is obvious to see that this will lead to harsh results. and a minor is now anyone under the age of 18. Section 2 of the 1987 Act provides that a guarantee of a minor's contract is not unenforceable against the guarantor merely because the contract made by the minor is unenforceable against him on the ground that he is a minor. The section does not apply if the contract made by the minor is unenforceable against him for some other reason. The 1987 Act. provides "Nothing in this section shall be taken to prejudice any other remedy available to the plaintiff. The term infant and minor are used interchangeably in most situations. so some general exceptions have been created. In such a case the guarantor would not be bound. no one in their right mind would ever enter into a contract with a minor. s3.enabling the minor to buy necessaries and that he in fact did so: Lewis v Alleyne (1888) 4 TLR 560." The plaintiff might rely on the equitable doctrine which required a fraudulent minor to return property which he had obtained by deception and which was still identifiable in his possession: R. for example misrepresentation or duress by the adult party.
minors who enter into sports or entertainment contracts are held to them. Their ability to make a contract was first limited by the common law. and then by the Infants Relief Act 1874. and restored the common law. and lodging or shelter. The law usually called such people as ‘infants’. the Minors’ Contract Act repealed the Infants Act 1874. . In some instances. If you are in the process of drafting a contract. Such goods and services include food. If a person does nothing to disaffirm the contract after they stop being a minor. Ratification A minor can only void a contract while they are still under the age of maturity (again. which still governs contracts made by minor today. ************************************** CONTRACT BY MINOR Traditionally. and cannot void them at will. clothing. the Family Law Reform Act reduced the age of majority to 18 and replaced the term ‘infant’ with ‘minor’ and then in 1987. the law can find that they will no longer be able to void the contract Can an Attorney Help Me With Minor Contracts? If contracting with a minor. the contract may not be legally enforceable. contacting an attorney is strongly recommended. Disaffirm the Whole Contract A minor who decides to void a contract because of his age must void the entire contract. The law does not let them to continue to enforce some of the contract while voiding other parts. anyone under 21 was regarded by the law as a minor. or have already done so and the other party is seeking to defend against its enforcement because they are a minor. an automobile or motorcycle is also considered a necessary. In 1969. which introduced rather complicated provisions on the subject. Necessaries Contracts for certain goods and services that are necessary to the health and safety of infants cannot be voided. usually 18). or for a reasonable time after they have reached that age.Generally speaking.
and who is of sound mind. and is not disqualified from contracting by any laws to which he is subject. 20. However in Section 11 of Contract Act 1950. some types of contract which are binding on minors. amongst other points. At the time of the transaction the attorney. for a lawful consideration and with a lawful object. MOHORI BIBEE v DHARMODAS GHOSE The plaintiff. The actual amount of loan given was less than Rs. had the knowledge that the plaintiff is a minor. who was a moneylender to secure a loan of Rs. and are not hereby expressly declared to be void. Brahmo Dutt died and the Appeal was prosecuted by his executors. Dharmodas Ghose. 20.000. however. There are. Brahmo Dutt. Previously the repealed Age of Majority Act 1961 provided that Muslims attain the age of majority at 18 while non-Muslims attain it at 21.The basic common law rule is that contracts do not bind minors. therefore. and . contended that the plaintiff had fraudulently misrepresented his age and therefore no relief should be given to him. who acted on behalf of the money lender. In Contracts Act 1950: All agreements are contracts if they are made by the free consent of parties competent to contract. The defendant. Section 2 of the Age of Majority Act 1971 provides that all persons in Malaysia attain the age of majority at 18. on which are merely voidable. mortgage was void and inoperative and the same should be cancelled. mortgaged his property in favour of the defendant. it does not expressly stipulate the effect of contract entered by incompetent party. By the time of Appeal to the Privy Council the defendant. Every person is competent to contract who is of the age of majority according to the law to which he is subject.000. while he was a minor. The plaintiff brought an action against the defendant stating that he was a minor when the mortgage was executed by him and.
MINORS’ CAPACITY TO CONTRACT UNDER ENGLISH LAW For the purpose of the law of contract. if mortgage is cancelled as requested by the plaintiff. Minor’s agreement being void. According to this section. Based on Law of England. referring to the case of Nash v Inman. Second. including 11 fancy waistcoats. the age of capacity was reduced from 21 to18 by Section 1 of the Family Law Reform Act 1969. Section 64 was not applicable to the case and therefore the minor could not ask to pay the amount under this section.10. which maybe fair in itself. the minor must be protected by the law against his inexperience. however. the legislation on minors in entering a contract is laid down by 2 principles. Section 9 of the same Act also abolished the common law rule under which a person attained his majority on the day preceding the relevant anniversary of the birth. It was decided that. A contract entered by a minor is voidable. a tailor sued a minor to whom he had supplied clothes. First. as an adult may take an unfair advantage of the minor. Their Lordships observed that Section 64 was applicable to the case of a voidable contract. the clothes were suitable according to the minor's station in life. in the sense that it can be either valid or void. a person is deemed to attain the age of 18 at the commencement of the eighteenth anniversary of his birthday. in this case. Unfortunately for the tailor. The decision of the Privy Council on the various points raised by the defendant was as follows. it was further decided that they were not necessary. or the adult may cause the minor to enter into a contract. For a void contract. as he already had sufficient .500 advanced to him.that. as the minor was an undergraduate at Cambridge University at the time. the plaintiff should be asked to repay the sum of Rs. the law should not cause unnecessary hardship to adults who deal fairly with the minor. but not provident. The Privy Council found that the fact that the plaintiff was a minor at the time making of the agreement was known to the defendant’s agent.
Generally in Malaysia. the plaintiff is a minor.clothing. following the decision of Tan Hee Juan. It was held that the plaintiff succeeds in his claimed and therefore Tan Hee Juan should not have to pay back to the defendant as there is no fiduciary relationship between the plaintiff and the defendant. At present. In the case of Tan Hee Juan. Minors are only under a legal obligation to pay for things necessary for their maintenance although even then they will only be required to pay a reasonable price for any necessaries purchased . it is said that contract that involved a minor is void. The court enables the minor to recover the money paid upon returning the property transferred to him. but in the case of Leha Jusoh which followed the jurisdiction of both Mohori Bibee and Tan Hee Juan. Following the decision in Mohori Bibee. where all contracts entered by minor are void. which repealed the Age of Majority Act 1961.so no contact was enforceable. For example in the case of Tan Hee Juan v Teh Boon Kiat and Leha bte Jusoh v Awang Johari bin Hashim. The learned trial judge held that the agreement was void but he went on to hold that the purchase price having been paid in full and the respondent let into possession. In the case of Leha bte Jusoh. The courts in Malaysia followed the principle laid in Mohori Bibee. there must be a fiduciary relationship between the parties. the age of majority is 18 years. it doesn’t matter if there is a fiduciary relationship between the parties or not. the minor will be entitled for the property taken from and took by him. At the time of the alleged agreement the respondent was a minor. as at the end. The respondent had alleged that he had entered into an agreement for the purchase of certain lands belonging to an estate of which the appellant was the administratrix. The appellant appealed. MINORS’ CAPACITY TO CONTRACT IN MALAYSIA The governing law for the age of majority is the Age of Majority Act 1971 (Act 21). a constructive trust had been created and the deceased held the lands in trust for the respondent. but in terms of remedy. the contract entered by a minor is considered as void. . So there is no contract at all.
and then consider whether they are in fact necessaries as far as the minor before them is concerned. Under common law. It was held that this was a necessary service. and in deciding the issue the courts can take into account the social status of the particular minor that is items which might not be considered necessaries for a working-class child may nevertheless be necessaries for one from a wealthy background. there are exceptional contracts available for the minor to be entitled as a valid contractor. the minor is only bound to pay a reasonable price for them.CONTRACTS BINDING ON A MINOR The general rule deduced from the case of Mohori Bibee v Dharmodas Ghose is that ‘all agreements entered by minor is void’. Where there is a binding contract for necessaries. who was a minor. even though it was a necessary service in this case. In Fawcett v Smetthurst. The Sale of Goods Act also provides that if necessaries are sold to a minor. shelter and clothing. Cooper an undertaker sued a widow. CONTRACTS OF SERVICE FOR THE MINOR’S BENEFIT . because the contract included a term making him liable for damage to the car ‘in any event’ that is whether or not the damage was his fault. When deciding if a contract is one for necessaries. The only contracts which are binding on a minor are contracts for the supply of necessaries. and so the young woman was obliged to pay. there is no obligation to accept and pay for them. CONTRACTS FOR NECESSARY GOODS AND SERVICES Necessaries mean ‘goods suitable to the condition in life of the minor or other person concerned and to his actual requirements at the time of sale and delivery’. the courts first of all determine whether the goods or services are capable of amounting to necessaries in law. which need not to be the contract price. a minor was held not to be bound by a contracts for the hire of a car. but before receiving the goods the minor decides that they are no longer wanted. In Chapple v. for the cost of her husband’s funeral. Nor is a minor bound by a contract which contains oppressive terms. However. It therefore include more than just such essentials as food. a similar approach is taken to contracts for services as for goods.
a minor made an agreement under which he gave up his statutory right to personal injury benefit. It was held that the rights gained were more beneficial than those given up. In Clements v London and North Western Railway. In Malaysia. and so the contract was. the court held that contracts to marry entered into by minors are distinguishable from other classes of contracts. and adoption. In practice this generally means contracts of employment under which a minor gains some training. Also. . experience or instruction for an occupation. for the minor’s benefit and therefore binding. Accordingly the minor plaintiff in that case could maintain an action on the agreement entered into between her father as her guardian and on her behalf and the first defendant whereby the latter promised to marry the minor. divorce. MISREPRESENTATION OF AGE BY A MINOR When a minor has misrepresented his age and thereby persuaded/induced/encouraged a person to contract with him. the person cannot sue the minor on the contract. In the case of Rajeswary v Balakrishnan. Therefore a minor may sue or be sued for a breach of promise to marry. on balance. namely marriage. dower. but gained rights under an insurance scheme to which his employers would contribute. The courts have recognized an exception to the general rule that all contracts entered into by a minor are void. providing these are on the whole beneficial to them.Minors are also bound by contracts of service. the minor can plea minority to avoid the contract. MARRIAGE CONTRACTS Section 4(a) of the Age of Majority Act 197: Nothing in the Act shall affect the capacity of any person to act in the following matters. They provide a remedy for any breach of promise to marry. the situation is different where there are various Islamic law enactments in each state in Malaysia.
the respondent moneylender sued the appellant for a sum of $29. she is not stopped from pleading her infancy to avoid the contract. The court had followed the Indian decision of Khan Gul v Lakha Singh AIR in doing this judgment. entered into by the three parties. the Privy Council held that the contract of loan . However. the plaintiff sued the two defendants on an agreement dated 28 March 1950. The appellant’s defence was that at the time of the loan. The question arose is whether a minor was stopped from pleading minority. relying on R Leslie Ltd v Sheill. The plaintiff argued that the defendant is stopped from pleading so as she had represented herself as being of full age. Another Malaysian case that applied this principle is R Natesan v K Thanaletchumi. The first defendant pleaded infancy in her defence. Applying the common law of England to Penang. the decision from court in Mohori Bibee v Dharmodas Ghose was contravene to Section 65 and 66 of the Contract Act 1950 where an adult cannot enforce or recover the contract with the minor. In Mahomed Syedol Ariffin v Yeah Ooi Gark. Wilson J found as a fact that there was no such representation. RECOVERY OF PROPERTY TRANSFERRED Section 65 of the Contract Act 1950 requires a party rescinding a voidable contract who has received any benefit there under to restore the benefit. Section 66 of the act requires any person who has received any advantage under an agreement that is discovered to be void or to restore or to make compensation for it to the person from whom he received it. In this case. the Privy Council held that the misrepresentation was not fraudulent and even it was. The court further held that even if an infant had falsely misrepresented herself to be a major and thereby induced a person to enter into a contract. He had wrongly believed and misrepresented to the respondent that he was 21 years old. there could not be any action against the appellant as he was still minor.521 lent. In this case. Both section require that a party who has received any benefit or advantage from a voidable contract or void agreement should restore the benefit or to make compensation for it. he was still an infant.This principle had been adapted to a number of Malaysian cases.
he cannot recover the money so paid if he has received any benefit under the contract. After some months use of the house and the furniture. The decision in Leha Bt Jusoh v Awang Johari bin Hashim enables the minor to recover the money paid upon returning the property transferred to him. when a minor pay money in pursuance of a contract that is not binding to him. The Privy Council further elucidated that whether a contract is void or voidable presupposes the existence of a contract within the meaning of the act. If we compare the principle of contract between Malaysia and English law. he took proceedings to get the lease set aside and to recover the money already paid. The former Federal Court applies the elements in Mohori Bibee v Dharmodas Ghose and in the case of Tan Hee Juan v Teh Boon Keat that Section 66 in Contract Act 1950 does not apply in a minor contract and there must be a fiduciary relationship. the decision and judgment may be different. Section 66. In Tan Hee Juan v Teh Boon Keat. Malaysia law diverse from English law where the contract entered by a minor is whether void or voidable. starts from the basis of there being an agreement or contract between competent parties and has no application in the case of an infant in which there never was. there exist a difference remedies and age of majority in Malaysia and English. the court must exercise its discretion to require the minor to refund the purchase money but the applicant must establish that there is some fiduciary relationship. In Valentini v Canali. CONCLUSION Based on the general rule in Mohori Bibee v Dharmodas Ghose. As a result. and never could have been any contract. The court decides that the money only can be recovered where there has been a total failure of consideration. it is clear that a contract entered by a minor is void.was void and not voidable. . He paid £68 and gave a promissory note for the balance. Hereford J expressed that on adjudging the cancellation of an instrument under Section 41 of the Specific Relief Act 1950. like Section 65. a minor took a lease of a house and agreed to pay the landlord £102 for the furniture. In England.
and whether the minor may avoid the contract depends on the nature of the contract. amongst other things but generally exclude conveniences.Minors are permitted to enter into contracts for limited purposes. Commercial or 'trading' contracts are excluded. accommodation. The remedies are unenforceable for the minor if the contract entered by him is beneficial upon him. employment. as are those for apprenticeship. The general law states that contracts entered into by children that are for 'necessaries' are binding on children. education and service where they are rightly said to be for the benefit of the child. Contracts for necessaries are for the supply of food. and the test is one that focuses on the nature of the transaction. These latter contracts are voidable at the option of the minor. and whether the minor is of an age such that they capable of understanding it. medicines. clothing. and products and services for comfort or pleasure. .
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