A minor is a person under 18 years of age. In older legislation, they were often referred to as “infants”. The age of majority was reduced from 21 years to 18 years by the Age of Majority Act, 1985.
Certain types of contracts are binding on a minor. Others may be repudiated. Others are absolutely void and of no effect.
A minor can enter contracts to acquire “necessaries”. Necessaries may be contrasted with luxuries. The expression “luxury” has no legal significance but is sometimes used to describe that which is not a necessary.
Necessaries under the Sale of Goods Acts are defined as goods suitable to the condition of life of the minor concerned and his actual requirements at the time of contract. Necessary services at common law, which may include, for example, training and apprenticeship, accommodation, health care, and transport have an equivalent meaning.
Definition of Necessary
“Necessary” goods are defined in Section 2 of the Sale of Goods Act as goods suitable to the condition in life of such infant or minor and to his actual requirements at the time of sale and delivery. Outside of this definition, the common law applies, which this definition largely reflects.
It must be shown the goods are capable of being necessaries as a matter of law. It must be shown that the goods are in fact “necessaries” in the particular circumstances of the minor. Formerly, the distinction was of more importance in that juries determined the latter while the judge determined the former. Juries have no role now in breach of contract cases.
A “necessary” is contrasted with a luxury. A luxury or amusement cannot be a necessary. However, what is a necessary changes with the circumstances of society and life. A necessary can include necessary expenditure unconnected with the minor, for others for whom he is morally responsible. It can embrace goods and services.
Examples of Necessaries
What is a necessary will depend on the actual position of the minor in question, including his requirements, social status, and wealth. What may be a necessary with respect of one minor, may not be a necessary in respect of another.
The following are examples of goods and services which are capable of being necessaries. Of course, the question of whether of they are in fact necessaries depends on the circumstances of the defendant.
- food and drink;
- lodging and accommodation;
- education and training;
- medical assistance;
- legal aid;
- essential services.
The supplier of the goods or services bears the burden of proving that the goods in question are a necessary for the defendant minor.
Loans to Minors
The Infants Relief Act, 1874 renders certain contracts by minors void. They include most loans and accounts stated, being essentially debts.
Loans for necessaries are not of themselves recoverable. If the minor uses the borrowed monies to purchase a necessary, the lender can usually stand in the place of the supplier, under the principle of subrogation. However, restitution is not permitted to circumvent the wording of the Infants Reliefs Act, where it applies.
Further 1892 legislation applies to a minor’s loan. If any minor, who has contracted a loan which is void in law, agrees after he comes of age to pay any money which in whole or in part represents or is agreed to be paid in respect of any such loan, and is not a new advance, such agreement, and any instrument, negotiable or other, given in pursuance of or for carrying into effect such agreement, or otherwise in relation to the payment of money representing or in respect of such loan, is , so far as it relates to money which represents or is payable in respect of such loan, and is not a new advance, be void absolutely as against all persons whomsoever.
Beneficial Contract of Services
A contract of service will bind a minor if it is beneficial. It is generally seen to be beneficial to a minor to learn a trade or business. Beneficial contracts of service may include apprenticeships, training contracts, education services and contracts of employment.
Reasonable and standard terms of apprenticeship in a particular trade are likely to be accepted as binding. It is of significance whether the minor is receiving education and training. This is generally required to make the contract beneficial. However, the earning of money in itself may be sufficient to be beneficial
The beneficial nature of the contract is assessed with reference to the financial and other benefit to the minor. Standard training and instruction contracts are likely to be more readily upheld as beneficial.
Unfair aspects of Contract
An unfair exemption clause in the contract with a minor may be struck down as unfair. The remainder of the contract may be upheld, shorn of the clause which purports to limit or exclude liability.
Exemption clauses in contracts with minors are particularly likely to be found to be against the minor’s interests. An exemption clause may make an otherwise beneficial contract not so. However, the court will consider whether the contract as a whole is beneficial.
The beneficial nature or otherwise of a contract is determined at the relevant time and not with the benefit of hindsight. The issue may be relevant in the context of the rules of sporting organisations to which minors are a party.
Rejection of Contract by Minors
Certain contracts are valid unless they are rejected within a reasonable time after the minor comes of age, i.e. reaches 18 years of age. The courts have recognized certain categories of contracts as subject to this option to “repudiate”.
- insurance contracts
- marriage settlements
- contracts for the allotment of shares
- partnership contracts
- lease and purchase of land with ongoing obligations
The right to repudiate may be exercised by the minor while he is under age or within a reasonable time after attaining 18 years. What is reasonable will depend on the facts and circumstances. The minor’s ignorance of the law does not appear to be a sufficient basis for delay.
Where a contract is repudiated, future obligations end. However, obligations accrued to date must be met. Recovery is only permitted if there has been a total failure of consideration. This requires that he did not get the benefit of what he has contracted for. See generally the sections on restitution. The requirement for a total failure can be difficult to prove so that payments made will not be readily recoverable.
Void by 1874 Act
Certain contracts by minors are deemed void by the Infants Relief Act. All contracts, entered into by a minor for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with minors, are absolutely void.
The minor may recover where there has been a total failure of consideration only. Notwithstanding the contract being void, property in the goods may pass on delivery. The minor may sue on the contract.
This provision does not invalidate any contract into which a minor may, by any existing or future statute, or by the rules of common law or equity, enter, except such as are otherwise voidable by law.
The Act does not apply to contracts for necessaries, beneficial contracts of service and contracts of a recurring nature.
Ratification of Contract on Full Age Void
The Act provides that debts contracted during infancy may not be recovered after full age, even if ratified, whether or not there has been new consideration. Specifically, it provides that that no action can be brought on the ratification of a minor’s contract made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age. Accordingly, a fresh promise to pay a loan contracted while under age is void.
The prohibition of an action on ratification applies to most minor contracts. This provision of the Infants Relief Act is wider than the first-mentioned provision. It excludes only contracts for necessaries, beneficial contracts of services and contracts with periodic recurring obligations, which may be avoided on attaining majority.
The minor is generally unable to obtain a refund of the purchase monies of goods which they have been consumed or used, as there is no a complete failure of consideration.
Other Capacity Issues
Generally, an infant may not enforce a contract by way of specific performance, if it could not be equally enforceable against him. This follows from the principle of mutuality. If he adopts the contract after full age, he may take specific performance proceedings. This does not apply to debts subject to the Infant Relief Act as specific performance does not arise.
In marked contrast to the protection afforded to minors in respect to contracts, a minor is liable for his torts / civil wrongs which do not require a specific intention, from a relatively young age, potentially as young as seven years’ old. This covers most torts, which require only negligence or other faults less than intentional wrongdoing.
Liability for civil wrongs must not be an indirect means of enforcing a contract. Therefore, the breach of duties closely linked with breaches of contract are not enforceable.
Benefits by Fraud
Fraudulent representation, which induces another to suffer loss, whether in a contractual or other context is a tort / civil wrong. As it requires specific intention, a minor is not liable, at least unless the court is satisfied that he has, in fact, sufficient mental capacity to form that intention.
It has been held that where an infant has deceived a person into advancing a loan on the basis of a fraudulent misrepresentation, it may not be recovered as such. It may be recoverable by way of restitution. A minor who has obtained goods by fraudulent misrepresentation will usually be obliged to return them under restitution principles.
There appears that the courts of equity may oblige a minor to account for benefits obtained by him by fraud, which would be otherwise irrecoverable. This follows from the equitable principle which seeks to right a wrong. Where a person holds a benefit, which is obtained by fraud, it is required to be disgorged.
Recovery by Restitution
The principles of restitution apply in the context of failed minors’ contracts. There will be a total failure of consideration in many cases, so that the court may undo unjust enrichment, at least where this is still possible. This will be limited in the case of contracts deemed void, to the extent that restitution would indirectly circumvent the statutory prohibition.
The claimant may recover his property by reason of his proprietary rights. the title to the asset has not passed to the infant, recovery may be had on the basis of detinue or conversion.
In some cases, subrogation to another’s rights may be allowed, even if the underlying contract is void. The lender of monies for necessaries may be subrogated to the rights and remedies of the supplier of the necessaries.
References and Sources
Irish Textbooks and Casebooks
Clark, R. Contract Law in Ireland 8th Ed. (2016) Ch.16
Friel, R. The Law of Contract 2nd Ed, (2000)
McDermott, P. Contract Law (2001) 2nd Ed (2017) Ch.17
Enright, M. Principles of Irish Contract Law (2007)
Clark and Clarke Contract Cases and Materials 4th Ed (2008)
English Textbooks and Casebooks
Poole, J. Casebook on contract law. (2014) 12th edition
Stone and Devenney, The Modern Law of Contract 10th Ed (2015)
McKendrick, Contract Law 10th Ed (2013)
Chen-Wishart, Contract Law 5th Ed (2015)
Anson, Reynell, Beatson, J., Burrows, Cartwright, Anson’s law of contract. 29th Ed (2010)
Atiyah and Smith, Atiyah’s introduction to the law of contract. 6th Ed.
Chen-Wishart, M. (2015) Contract law. 5th Ed.
Cheshire, Fifoot and Furmstons, Furmstons and Fifoot Cheshire, Fifoot and Furmston’s law of contract. OUP.
Duxbury, Robert (2011) Contract law. 2nd Ed.
Halson, Roger (2012) Contract law. 2nd Ed.
Koffman & Macdonald’s Law of Contract. 8th Ed. (2014)
O’Sullivan, Hilliard, The law of contract. 6th Ed. (2014)
Peel, and Treitel, The law of contract. 13th Ed. (2011).
Poole, J.Casebook on contract law. 12th Ed. (2014).
Poole, J. Textbook on contract law. 12th Ed. (2014)
Richards, P Law of contract. 10th Ed. (2011)
Stone, R. The Modern law of Contract. 10th Ed. (2013)
Treitel, G. H. An outline of the law of contract. 6th Ed (2014).
Turner, C Unlocking contract law. 4th Ed. (2014).
Upex, R. V., Bennett, G Chuah, J, Davies, F. R. Davies on contract. 10th Ed. (2008).
Stone,Devenney, Text, Cases and Materials on Contract Law 3rd Ed (2014)
McKendrick, Contract Law Text, Cases and Materials 6th Ed (2014)
Stone, R, Devenney, J Cunnington, R Text, cases and materials on contract law. 3rd Ed (2014)
Burrows, A. S. A Casebook on Contract. 4th Ed.
Beale, H. G., Bishop, W. D. and Furmston, M. P. Contract: cases and materials. 5th ed. (2008)
Blackstone’s Statutes on Contract, Tort & Restitution 2017 (Blackstone’s Statute Series)
UK Practitioners Texts
Chitty on Contracts 32nd Edition, 2 Volumes & Supplement (2016)
The above are not necessarily the latest edition.