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CAPACITY OF MINOR UNDER CIVIL

CRIMINAL & CONTRACT LAW

Name: Srinivas Laksman


Roll No.-2014027
Semester-1
Section-A

TABE OF CONTENTS

Introduction ...3
A Minor under Contract Law ....5

Introduction

Legal capacity is defined as law recognises a person as having legal


capacity only when that person understands and appreciates the consequences of their
actions. The aim of this essay is to explain how the law provides protection for an individual
when a person does not have the understanding and appreciation of their actions. Three key
areas will be examined in respect of legal capacity, from the onset of gaining a legal
personality to the age of criminal responsibility, through to adolescence and finally looking at
legal capacity as an adult.
Legal personality is attained upon birth and is retained until death, although the rights of
minors (those persons aged under18) are restricted. Legal capacity is only acquired when an
individual reaches a certain level of intellectual maturity and competence. At birth these
rights are delegated to either the parents, legal guardians or the State. The child is protected
under law by the Children Act 1989 which designates those that have parental responsibility
to safeguard and promote the wellbeing of the child. Whilst the Children Act 1989 defines the
notion of parental responsibility, the Education Act 1996 states that those with parental
responsibility are to ensure that the child is in full time education between the ages of 5 and
16. In criminal law a child under the age of 10 cannot be held legally responsible for their
actions, and so cannot be convicted for committing a criminal offence. This is known as the
doli incapax rule and it is an absolute conclusive presumption. In civil law, a child cannot
enter into a legally binding contract apart from distinct exceptions such as purchasing food,
bus fares and clothes as these are deemed essential services.
With the onset of adolescence, legal capacity is attained at varying ages. For example, a
minor at the age of 13 may work, although the nature of the employment, hours worked and
remuneration are subject to a myriad of legislation ranging from Acts of Parliament, Local
Byelaws and EU Directives implemented to protect the child. The Family Law Act 1969
fixed the upper age limit of individual medical consent to 16 years old. This fixed age may
be open to individual legal challenge as Gillick v West Norfolk and Wisbech Health
Authority [1986] AC 112 highlights. Lord Scarman's ruling in this case stated that parental
rights to determine whether or not their minor child below the age of sixteen will have
medical treatment terminates if and when the child achieves sufficient understanding and

intelligence to understand fully what is proposed. This has now become known as the test for
Gillick Competency. This case highlights the attainment of legal capacity as a minor,
although conversely one can see liability of children regarding the tort of negligence being
challenged in the case of Mullin v Richards [1998] 1 All ER 920. Judge Hutchison ruled in
favour of the defendant in that there was insufficient evidence that the accident had been
foreseeable in the case of an ordinary prudent and reasonable child in what had been no more
than a childish game.
When an individual reaches the age of 18, one is legally considered an adult. In certain
circumstances, although one has attained full legal capacity, there may be times when the
individual loses this capacity due to reasons of acute or chronic mental health issues, disease
or traumatic injury. The Mental Health Act 1983 primarily covers the reception, care and
treatment of mentally affected persons. It provides the legal framework for the assessment
and/or treatment of mental disorders in cases of those not having the requisite capacity. This
allows the State to act as parens patriae to provide medical treatment to the individual
concerned. In the case of Re T (adult: refusal of medical treatment) [1992] 4 All ER 649
refusal of medical treatment was denied by the Court of Appeal as the individual concerned
had been subject to undue influence by a close relative. However, provided there is sufficient
information and provided that the refusal is drafted in sufficiently unequivocal terms, and the
individual displays the requisite legal capacity, it should be treated as a lawful refusal of
medical treatment. The Mental Capacity Act 2005 was introduced to provide a legal
framework for acting and making decisions on behalf of individuals who lack the capacity to
make particular decisions for themselves. A legal document called a Lasting Power of
Attorney (LPA) allows an individual to appoint an attorney to make decisions on the
individual's behalf. Two types of LPA can be made, a health and welfare LPA and a property
and financial affairs LPA. The LPA must be registered with the Office of the Public Guardian
(OPG). If an individual has not appointed an attorney, the Court of Protection may make
decisions in relation to the property, finances, healthcare and personal welfare of individuals
who lack capacity. The Court will appoint an Independent Mental Capacity Advocate
(IMCA) to act on behalf of the individual. In reaching any decision, the Court must apply the
statutory principles set out in the Mental Capacity Act 2005. It must also make sure its
decision is in the best interests of the person who lacks capacity.

In addition to the legislation mentioned, the Human Rights Act 1998 (HRA 98) gave effect to
the European Convention of Human Rights. Within the scope of this legislation protection is
afforded to those individuals lacking capacity under Article 8. In keeping with HRA 98 the
Mental Capacity Act's starting point is the presumption that everyone has legal capacity to
take their own decisions. Before a decision is taken on behalf of a person who lacks capacity,
consideration must be given as to whether the same purpose can be achieved as effectively, in
a manner that is less restrictive of the person's rights and freedom of action.
The active legal capacity of a person is related to the achievement of a certain physical and
mental maturity. An adult person has active legal capacity. There are differences between the
various legal systems considered here only as to the age from which a person is considered
adult and having active legal capacity. Under the Indian Majority Act, 1875, a person
attains majority on his completing the age of 18 years but it before the completion of that age
he has a guardian appointed by the court, he attains majority on completing the age of 21
years.

Defining Minor
A Zee Research Group (ZRG) study of the existing juvenile laws shows that there
is no unanimity yet on the age criteria. Various ministries have their own independent
definitions for a child to be called juvenile.
The central governments Women and Child Development ministry notified last
June The Protection of Children from Sexual Offences Act (POCSO Act) prescribing the
child age as below eighteen years. This Act was initiated specifically to arrest crimes against
children.
In contrast, Children in India 2012, a report published by the Statistics and
programme implementation ministry, says a child domiciled in India attains majority at the
age of 18 years. However, the report states that various legal provisions in India address
children with differing definitions.
Likewise, the Article 45 of the Constitution avers that the state shall endeavour to
provide free and compulsory education to all children until they complete the age of 14 years.
The Juvenile Justice (Care and Protection of Children) Act 2000, amended in 2006, 2010
respectively declares that a juvenile or child means a person who has not completed 18
years of age.

Until 2000, juvenile delinquency as per the Juvenile Justice Act, fixed the age
for a male below 16 years and that for a female below 18 years. The amended Act in 2000
brought the age of juvenile male and female at par to 18.
Similarly, Indian Penal Code in its Criminal law states that nothing is an offence
which is done by a child under age of seven years. The age of criminal responsibility is raised
to 12 years if the child is found to have not attained the ability to understand the nature and
consequences of his or her act.
The difference in age prescription is even more glaring in various laws governing
children in India. While Child Labour Prohibition and Regulation Act (1986) protects a child
below and within fourteen years of age, the Apprentices Act (1961) meant for minor only
engages a person who is not less than fourteen years of age. Like the Apprentices Act (1961),
the Factories Act (1948) also allows the employment of an adolescent between 15 and 18
years but with a certificate of fitness from an authorised medical doctor. Then there is the
difference in the marriageable age of man and woman at 21 and 18 respectively under the
Prohibition of Child Marriage Act (2006).
Explaining the age differences prevailing in various constitutional safeguards
pertaining to children, Anant Asthana, child rights lawyer at New Delhi says, Various laws
on children were formulated at different intervals of time keeping in mind the needs of
different categories of children. But as per the recent developments like POCSO Act,
amendments are lined up for a uniform age to consider children.
Globally too the prescribed juvenile crime age varies from country to country: Ten
in England, Wales and Northern Ireland respectively; 12 each in Canada and the Netherlands;
13 in France; 14 each in Germany, Austria, Italy, Japan and Russia, and 16 in Spain and
Portugal respectively. In the US, it ranges from six in some states but is ten for federal
criminal court prosecutions. The U.N. Convention on the Rights of the Child bars both capital
punishment and life imprisonment without the possibility of release for crimes committed by
juveniles less than 18 years of age.

A Minor under Contract Law :


As with contracts entered into by adults, minors have to fulfill certain
prerequisites before a contract is considered enforceable. The primary requirement is having

the capacity to contract. Capacity to contract is questionable when dealing with minors
because the rationale is that a minor is regarded as not having sufficient capacity to
understand and pass upon questions involving contractual rights. Accordingly, a person
dealing with a minor does so at his or her peril and subject to the right of the minor to avoid
the contract. Yet, some contracts cannot be voided. Specifically, a minor remains liable for
certain contractual obligations:

Taxes

Penalties

Bank regulations

Military

Necessaries
For instance, perhaps the biggest area of enforceable minor contracts deals with

necessaries, which consist of goods reasonably necessary for subsistence, health, comfort or
education. As such, contracts furnishing these items to a minor cannot be disaffirmed.
Example: Janice and Fred marry and purchase a home. They are both minors.
To obtain a mortgage, Fred lies about his age to get a loan from the seller. Six months later
Janice and Fred separate; Janice moves back home with her parents. Fred has second
thoughts about the mortgage and sues the seller to recover payments made on the mortgage.
The seller counter sues to foreclose on the mortgage. The court held that Fred was liable for
the mortgage, although he signed the contract as a minor. Since housing falls into the
category of necessaries, Fred cannot just walk away from his obligation to pay the mortgage.
The minimum mental capacity required by law for a party who enters into a
contractual agreement to be bound by it. Common law recognizes three classes of persons
who are generally not considered to have sufficient capacity to be bound by their contracts:

Minors: In virtually all states, unmarried persons under the age of eighteen (18) are
permitted to enter into any contract an adult can, provided that the contract is not one
prohibited by law for minors (e.g., agreement to purchase cigarettes or alcohol). However,
unlike those entered into by adults, contracts entered into by minors are generally voidable by
the minor.

Mentally Impaired or Incompetent Persons: Likewise, contracts entered into by


persons who are, at the time of contracting, intoxicated [impaired] (voluntarily or not) or
mentally incompetent are generally voidable.

Unlike a void contract, which is unenforceable on its face, a voidable contract is


presumed to be enforceable but for the presence of some factor -- here, the contractual
capacity of one of the parties -- which permits a party lacking capacity to avoid his or her
otherwise valid contractual obligations.

There are many situations in which minors would have to enter into contracts, for
example when purchasing something they may be required to sign the terms and conditions
of sale for particular goods. When purchasing goods they may also enter into an agreement in
relation to a warranty. There may also be times in the sporting context whereby a contract
would be entered by a minor; this could even be in relation to their potential employment or
for the potential for someone to be employed on their behalf. Accordingly you can contract
with someone under the age of majority, you must just be aware of certain factors when
doing so.

A Minor under Civil Law :


Every child is a citizen of his country and is governed by the rules and regulations prevailing
there. But a child has certain exceptions which makes him different from adults. His
incapability to distinguish between right and wrong, lack of farsightedness, innocence and
naughtiness makes a child outstanding in the stream of adults. Minors can be sued if they are
old enough to form intent to commit a particular tort or are sensible enough to prevent from a
negligent act done by them. They can sue just like adults but through their next friends who
are obviously their parents. Interestingly enough a child in the mothers womb who suffered
an injury due to an outsider can also sue the guilty for his injury, of course after coming in the
world. Talking about parents, they can be held liable if they owed direct duty of care towards
their child while he perpetrated a tort.
in India there is no existing enactment for the minor in context of torts. But we have a
provision in criminal law that a child of less than 7 years cannot be held liable for crime.
Now, if we have a provision in criminal law, why not pass an act which keeps torts and minor

in mind, knowing the fact that children are more prone to civil wrongs instead of committing
crimes. This article is an attempt to make the reader aware of the law of torts (civil wrongs)
governing minor i.e. a person below the age of maturity and surface up the intricacies in the
prevailing laws.

Capacity to be sued
Age Factor
There is no minimum age for the existence of tortuous liability . A minor, can be
very well sued like an adult, if the action committed by him is in contrast with the reasonable
action expected from the child of that age in a particular situation.
In Gorely v. Codd, the court held a boy of age more than 16 years for
shooting the claimant with an air rifle in the course of larking about. In the foregoing case
of Tillander v. Gosselin the High Court of Ontario, Canada, established that a minor can be
sued if he is old enough to form an intention to do the necessary act . Similarly in
negligence, where intention is not the pre-requisite, the court in Mullin v. Richards
established that a 15 year old school girl was not negligent when she injured a school friend
while fencing with a plastic ruler. Therefore a minor is negligently liable if he failed to show
the amount of care reasonably to be expected from a child of that age
As per notion, a minor is not worth suing because of his incapability to
reimburse damages. But, if the affluent society is considered and when we see that a
judgement debtor now without funds may acquire them (damages) later, and that he may be
sued on the judgment, or execution may be issued on it, up to six years from its date, or even
after that period with the leave of the court , the notion appears untrue.

Contributory Negligence
When contributory negligence is alleged against any minor then the test is, what
degree of care for his own safety can an infant of the particular age reasonably be expected to
take.The Pearson Committee (UK) in 1978 took the view that a child less than 13 should not
be held contributory negligent. But, unusually in Armstrong v. Cottrell and Morales v.
Eccleston court dealt with facts and children of less than 13 years of age were held liable.

Explicitly, almost same standard of care i.e. ability to do an act according to the age is
applied in contributory negligence.

Tort and Contract


A minor is liable in tort as an adult but the tort must be independent of the
contract. A minors agreement is void even if he fraudulently represents himself to be of full
age as established in Sadik Ali Khan v. Jaikishore. Similarly, in R. Leslie Ltd v. Shiell [1914]
3 K.B. 607 at 620 a minor was immune to any contractual charges or reimbursement inspite
of availing loan facilities by fraudulently projecting himself of full age. In the same case it
was established that it is possible to compel a minor for specific restitution if he fraudulently
acquired some property and is still in control and possession of that property.

Though, now, the common law court has discretion to order the transfer
back of the property acquired even without fraud, if still in possession, under section 3(1) of
the Minors Contracts Act 1987. In case of a bail, contract with minor is not necessary for
restoration of the goods on the determination of the bailment.

Capacity to sue
A minor must sue by his litigation friend or the next friend (usually father) for
any wrong done to him. Apart from this, a minor is in no way different from an adult. An
unemancipated minor may even sue his parent for negligence. In an American case a father
was held liable for running his business vehicle over his son while the plaintiff was playing in
the field.

1 en ventre sa mere
It is interesting to notice that a child who is born alive can bring an action for
the disability/injury suffered in his mothers womb by some wrongful act of the tortfeasor.
The Roman maxim Nasciturus pro iam nato habetur though was held right by the English
law earlier but the image remained blurred. Then, on the recommendation of the Law
Commission the British Parliament passed Congenital Disability (Civil Liability) Act
(CDA) in 1976, whereby, an action for the injury to unborn child has been permitted in
certain cases. This act was referred to by the Supreme Court of India in Union Carbide
Corporation v. Union of India , in which it held that those children who congenitally suffered
injury due to toxic effects of Bhopal Gas Tragedy are entitled to be compensated. This
decision certainly surfaced the broader dimension of this English Act by treating whole of the
corporation as a unit.
The nature of duty in these cases is derivative i.e. court should come to a
decision after wary examination of the facts that whether a person is really liable. Different
cases have different background and they should be dealt as per their facts. Few exceptions
are answered by the Act but some are sill speculative. For instance, a child may sue
manufacturer for damages if he suffered injury due to some drug intake by his mother even if
it doesnt affect the mother but contravenes the law under Consumer Protection Act. On the
flip side childs damages are reduced when the parents shared the responsibility for the child
being born disabled. Further, a child can even sue his mother if he suffered pre-natal harm
when his mother was pregnant and driving the motor vehicle negligently. It is not clear

whether she should have knowledge of pregnancy. Otherwise general rule is that a mother is
immune to such liabilities. But, immunity is not extended to father. He can be very well held
liable if he assaults his pregnant wife and that act renders to unborn child, any harm.
Concept of Wrongful life refers to a condition when a childs disability is
negligently not diagnosed pre-conceptually and he is born disabled. It is debatable whether
defective or negligent selection of embryo or gamete in modern times would lead to the
liability. It is distinguished from Wrongful birth because in this parents claim for damages
to themselves resulting from the childs birth. Common Law does not permit any action for
wrongful life as decided in McKay v. Essex Area Health Authority, by the Court of Appeal.
Thus, in the light of above, doctrine of en ventre sa mere appears a justified tool
of dispensing justice to the victim i.e. the child unborn. It is fair enough to compensate that
child who was the most innocent party possible and suffered abnormality due to the wrongful
act of the offender.

India- Torts and Minors: A rare combo.


There is no case law in India on this point. Though, the court may refer
to English cases and statutes whenever such a situation arises like it did in Bhopal Gas
Tragedy case but there is no indigenous enactment which abstain us from peeping in the
Common Law Acts as such. Although, Hindu jurisprudence recognises the property rights of
the male child in the womb but absence of secular law on this factor has always been felt.
We have our own constitution and our own bodies to frame the laws/acts
and execute them. Then, is it defensible to sit in a python posture and wait for some celestial
power to bless us with the indigenous laws? No! Attempts should be made to frame the law
appropriately keeping in mind under 18 population. Torts is a non statutory law. Its domain
can not be restricted by writing it down on the paper because of its infinite scope. But, those
laws which can aid the marginalized sector of the legal society such as minors must be
framed and executed. Like the CDA,1976 framed by Englishmen, we can also come up with
some new laws owing to the conditions of minors in India. Those laws may be on English
lines. No objection to that! But, at least parliament should come up with some logical official
slip to make our provisions complete.

A Minor under Criminal Law :


"In our country children are considered as a gift from the heaven and from the very beginning
children are exempted from severe punishment for any wrong committed on their part
irrespective of the gravity of the act".
The Apprentices Act, 1850 was the first legislation dealing with children in conflict with law,
providing for binding over of children under the age of 15 years found to have committed
petty offences as apprentices. Subsequently, the Reformatory Schools Act, 1897 provided
that children up to the age of 15 years sentenced to imprisonment may be sent to reformatory
cell.
Juvenile Justice Act, 1986 was enacted by our parliament in order to provide care, protection,
treatment, development and rehabilitation of neglected or delinquent juveniles and for the
adjudication of certain matters relating to, and disposition of, delinquent juveniles as a
uniform system of juvenile justice mechanism throughout our country. Under the Act of
1986, Section 2(a) defined the term juvenile as a "boy who has not attained the age of 16
years and a girl who has not attained the age of 18 years" but later on the parliament enacted
Juvenile Justice Act, 2000 (herein after 'JJ Act') and the age bar was raised to 18 years for
both girl and boy. The JJ Act, 2000 lays down that juvenile in conflict with law may be kept
in an observation home while children in need of care and protection need to be kept in a
children home during the pendency of proceedings before the competent authority. This
provision is in contradistinction with the earlier Acts which provided for keeping all children
in an observation home during the pendency of their proceedings, presuming children to be
innocent till proved guilty. The maximum detention could be imposed on a juvenile is for 3
years remand to Special Home irrespective of the gravity of offence committed by him and JJ
Act, 2000 immunes the child who is less than 18 Years of age at the time of the commission
of the alleged offence and from trial through Criminal Court or any punishment under
Criminal Law in view of Section 17 of the Juvenile Act.
In our country the time has come in order to bring some reform in the Juvenile laws as there
is a steep rise in serious crimes involving youth of 16 18 years of age and they very well
know that below 18 years is the 'getaway pass' for them from the criminal prosecution. The
punishment should be made a bit deterrent in order to inject the feeling of fear in the mind of
the criminal. The recent rape case of "Nirbhaya" has caused utter dismay, concern and
outrage amongst the people. The gruesome act of brutalizing her with an iron rod was done

none other but by a juvenile and he has been sentenced for a period of 3 years as per Section
15 of JJ Act, 2000 as per our law for juveniles. The principal ought to have been followed for
trying juvenile offenders is that Juvenility should be decided as per the state of mind and not
just the state of body.
In our country it's a general trend to get our age reduced by 2-3 years at the time of
matriculation so even if the offender is above 18 years but on record he is a juvenile as per
his birth certificate then he would be treated as a juvenile. In the recent Nirbhaya's rape case
all the other co- accused are awarded death sentence but the person who committed the most
brutal part of the case has been awarded a mere 3 years of remand as per JJ Act, 2000.
The heinous crimes such as rape, murder etc are crimes which totally destroys the moral of
the victim's family and if it's a rape then it's a lifelong stigma for the girl and her family
member. Many offenders of these crimes walk free after serving a minimal period of sentence
after being proven juvenile as per the so called records. Thousands of cases go unreported in
our country just because of the stigma attached and most of the time victims are shunned
from the society and are left unmarried just because that she was not physically strong
enough in order to fight for her freedom from the clutches of the person or persons. The
juvenile who commits crime of this gravity should not be left to walk free after serving
maximum of 3 years that too in special home. It is high time that the law should be amended
on the same footing of countries like U.S, U.K etc where a juvenile is also tried in a criminal
court depending on the gravity of the offence committed by the minor.