Fenomenografía y enfoques de aprendizaje en el dominio musical

This category of limited capacity exists to protect those who work on behalf of their country, and to enable international relations to proceed unfettered by problems of ignorance of foreign law. In practice it is only seen actively in minor incidents, apart from an isolated group of more high profile cases.

But not:

• corporations

• drunkards

• those of unsound mind

• diplomats and sovereigns

• minors

Most adults have full contractual capacity

Figure 5.1

Minors

The final category of those protected by the law of contractual capacity is minors, and this is the category of capacity which this chapter will focus on. A minor is a person under 18, although as recently as 1969, before the Family Law Reform Act was passed, a person under 21 was referred to as an ‘infant’. The above Act lowered the age of majority to 18 and introduced the term minor.

A somewhat paternalistic approach is taken in contract law, by restricting the minor’s capacity to contract. However, if there was no protection at all for minors, there would surely be criticism in the other direction, namely that the law was too harsh on young people. The Law Commission suggested in 1982 that minors should be bound from the age of 16, rather than 18, which is a reasonable argument given that a 16-yearold can legally marry, have children and enter into employment. However, a cautious approach has prevailed, perhaps because of the involvement of commercial pressure in a modern consumer-orientated society.

The aim, then, is to protect minors from their own inexperience and perhaps from unwise transactions, whilst not being too hard on any adult dealing fairly with a minor. A minor can enforce a contract against the other party, providing it is an adult, but there is a general presumption that contracts with minors are unenforceable. However, some contracts with a minor are valid, and therefore enforceable.

Necessaries

A minor will be liable for a contract for the sale of necessaries. If all contracts with minors were unenforceable, retailers would be reluctant to sell to them on credit under any circumstances. So, to enable a minor to obtain basic essentials for ordinary living, the law regards a minor as being bound under a contract for the sale of necessaries sold and delivered to them. The term ‘necessaries’ covers more than just items needed to stay alive, such as shelter, food and clothing, but those things which are essential and suited to the minor’s position in life. So a minor who is in a relatively high social position will be liable for payment for more than a minor in a lower position financially.

At what age do you think that a minor should be liable for contracts, and why?

There is a twofold definition of necessaries, therefore, dependant on both social status and a genuine need.

The Sale of Goods Act 1979 s.3(3) defines necessaries as, ‘goods suitable to the condition in life of the minor and to his actual requirements at the time of sale and delivery’.

This distinction does appear somewhat discriminatory, but if it were not so, a person who was wealthy and could well afford to pay for purchases would

‘escape’ with the same liability as a much poorer person. The question must arise as to how a retailer is to establish a person’s social status (assuming that he is aware of the law and has first of all established the age of the customer).

The operation of the twofold definition of necessaries is illustrated in the following case.

Despite suggestions by the Law Commission that the definition of necessaries be made clearer and narrower, no action has yet been taken, and the principles used in Nash v Inman are still the starting-point in deciding

Should the law discriminate by linking ‘necessaries’ to a person’s social status, or should a wealthy person be liable for the same purchases as a poorer person?

Nash v Inman (1908)

A Cambridge university undergraduate, the son of a wealthy architect, ordered ‘eleven fancy waistcoats’ from a Savile Row tailor. He did not pay for them, relying on the fact that he was not of full capacity. The incident arose at a time when such waistcoats were normal student clothing at Cambridge, and this, coupled with the status of the client, persuaded the court that such items could be necessaries. However, it was found that the student’s father had already provided him with plenty of clothing, including waistcoats, and therefore they were not actually required. The law at the time, then, protected the student very well, but was rather harsh on the tailor, who received no payment at all.

We will see later that the position may be different should a similar situation arise at the present time.

How easy is it now to obtain credit as a minor? Should it be more difficult, or should credit be easily available?

exactly what is a necessary. So to enforce a contract against a minor, it must be shown that the goods in question are both necessary and actually required at the time, having regard to the individual situation.

Two examples follow from the same Victorian period as Nash v Inman.

What purchases could be ‘luxurious articles of utility’ and therefore treated like necessaries?

Peters v Fleming (1840)

An expensive watch-chain was supplied on credit, and it was left to the jury (which was more usual in civil cases at that time) to decide whether it was a reasonable purchase for this particular student, and therefore whether it was a necessary. It was considered reasonable for a student to have a watch, and therefore a watch-chain was needed.

Wharton v MacKenzie (1844)

An undergraduate, this time from Oxford, obtained supplies for dinner parties. It was held that fruits, ices and confectionery could not be treated as necessaries without further justification. So the application of necessaries to a person’s social standing will be a matter of fact on each occasion.

Chapple v Cooper (1844)

Some useful observations were made in this case which give further guidance on what may amount to a necessary. Alderson B said,

Things necessary are those without which an individual cannot reasonably exist. In the first place, food, raiment, lodging and the like. About these there is no doubt. Again, as the proper cultivation of the mind is as expedient as the support of the body, instruction in art or trade, or intellectual, moral and religious information may be a necessary also. Again, as man lives in society … his clothes may be fine or coarse according to his rank;

his education may vary according to the station he is to fill; and the medicines will depend on the illness with which he is afflicted

…. Thus, articles of mere luxury are always excluded, though luxurious articles of utility are sometimes allowed.

Necessaries may take the form of services, although these have not been defined by statute in the same way as goods. The term includes contracts for education, training, employment, and legal and medical expenses, and also applies to the spouse and children of a minor.

However, if a contract for services is particularly onerous on the minor, it will not be binding, however necessary the services are to him.

So, we can see that the following position emerges regarding necessaries:

• basic requirements for survival, such as basic shelter, food and clothing, normally will be necessaries, and the minor will have to pay a reasonable price for them

• more luxurious items which have a utility value may be regarded as necessaries, such as a car which is used to reach the work place or college course, and, again, the minor will have to pay

• items which are merely luxuries, such as jewellery, will not normally be regarded as necessaries, and the contract will be unenforceable against the minor

• similar principles apply to services, providing the agreement is not too onerous on the minor.

Beneficial contracts of service

A second type of contract which may be valid against a minor, is the beneficial contract of service, really an extension of the statement of Baron

Think of some things which you have bought recently, and try to decide if they would be regarded by the court as necessaries.

Chapple v Cooper (1844)

A young widow was sued successfully for the funeral expenses for her late husband, as these services were regarded as necessaries.

Fawcett v Smethurst (1914)

A minor hired a vehicle to transport his belongings – a service which would almost certainly be considered a necessary. However, in this case is was held not to be binding, since a clause in the contract would have made the minor liable for cost of repairs to the vehicle, whether his own fault or not.

Alderson in Chapple v Cooper (see p. 82). Often this takes the form of a contract of employment, education or training for a minor.

It is really an extension of the idea of necessaries, as it is regarded as essential that a minor learns a skill or trade in order to support himself. It is obviously of major concern economically that minors develop the skills and in an environment which enables them to learn a trade or profession, and that they are able to form satisfactory contracts of employment. With these contracts the courts take the view that an oppressive contract is unenforceable against a minor, but that if a contract is, on the whole, beneficial to the minor, then it will be binding, even though an individual clause may not be to his advantage.

The approach taken by the courts is illustrated in the following contrasting cases.

De Francesco v Barnum (1889)

A 14-year-old girl formed a 7-year agreement to train as a stage dancer.

It was said that she was entirely at the disposal of her stage master, as he did not guarantee her any work, she could not accept any other work without his agreement, and she could not marry or travel abroad during this time. The contract was held to be on the whole oppressive, rather than beneficial, and therefore unenforceable.

Aylesbury FC v Watford AFC (1977)

Lee Cook, a 17-year-old footballer, was contracted to Aylesbury but allowed to treat the contract as not binding on him so that he could form a new contract to play for Watford. A restraint of trade clause in his original contract was held to be too onerous and the contract not therefore, on the whole, for the minor’s benefit.

Clements v London & NW Rail Co (1894)

A young porter joined a private insurance scheme, but in return gave up certain statutory rights as an employee. The court held that despite the benefit which had been given up under the contract, he had received greater benefit from the employer, so it was on the whole to his benefit, and therefore enforceable.

Doyle v White City Stadium (1935)

A young boxer was held bound by a contract in which he was subject to the rules of the British Boxing Board of Control. This meant that he Why, as a matter of policy, should the law be concerned with beneficial contracts of service?

On the other hand, trading contracts with a minor will not be enforced.

Voidable contracts

A third type of contract with a minor which may be binding is where a minor enters into an agreement of continuing obligation. This is a contract of an ongoing nature, such as the renting of accommodation. In this case the contract will be regarded as valid, unless the minor repudiates it before reaching 18, or within a reasonable time afterwards. This leaves a workable arrangement for those dealing with a minor, but gives the minor an opportunity to ‘escape’ if he later regrets his action.

In the case of Edwards v Carter (1893) Lord Watson explained the position as follows. ‘If he [meaning the minor] chooses to be inactive, his opportunity passes away; if he chooses to be active, the law comes to his assistance,’ meaning that the minor has an opportunity to excuse himself

lost his ‘purse’ – the prize money from a fight – but the contract was seen to be on the whole beneficial to him, despite this one clause which was disadvantageous, because of the training which he received.

Chaplin v Leslie Frewin (1966)

A contract made by the son of Charlie Chaplin to write his autobiography was held binding, as it enabled the minor to begin to earn his living as an author.

Roberts v Gray (1913)

When a billiards player agreed to take a minor on a world billiards tour, providing his lodging and travelling arrangements under the contract, this was viewed by the court as ‘a kind of education’. The minor later changed his mind and claimed the contract unenforceable, but was held liable in damages.

Mercantile Union Guarantee v Ball (1937)

A contract of hire purchase by a minor running his own haulage business was held unenforceable. Although this is a measure to protect the minor, it could be seen as putting a young person who wishes to run his own business at a disadvantage, for example as a market trader or other retailer, compared with a similar minor who is employed. It is an example of the courts looking after the interests of the minor, by preventing him from taking financial risks, without the necessary experience, and it could be argued that this is not necessarily a bad position, given that the age of majority is now 18.

from the contract, otherwise it will be presumed binding on him. In this case, a marriage settlement was made for a young man who made a further agreement to invest any money which he later acquired into the same settlement. He reached adulthood, and then inherited money from his father. He regretted having made the commitment to invest it and repudiated the agreement. It was held that the repudiation was too late, and the agreement was binding.

Figure 5.2

Is a minor’s contract enforceable?

Exactly what is a reasonable time is not clear, and will be a decision of the court given the particular circumstances. It was argued in Edwards v Carter that the effect of the agreement did not have an impact on the minor until he inherited the father’s estate. This does seem a reasonable claim, but what if the inheritance had not been received until ten years later? A further argument could be raised over the level of legal knowledge of the minor. If the presumption is that such an agreement is binding, the only protection for the minor depends on his knowledge of the legal right to repudiate.

The effect of repudiating a voidable contract is that the minor’s obligations end, but he is not entitled to recover money already paid, unless there is a complete lack of consideration. In Steinberg v Scala (1923) a minor repudiated a contract for shares. All obligations between the minor and the company ended at this point, but she could not recover the original cost of the shares. The position regarding money due up to the time of repudiation is less clear, and even academic authorities differ on the issue. It is possible that the minor may be liable for debts incurred up to the time of repudiation.

The Minors’ Contracts Act 1987

All of these common law measures seem to leave the minor in a very protected and somewhat privileged position. Indeed, until recent years, the law was regarded as being particularly harsh in some circumstances on an adult who contracted with a minor, especially given that there is a great difference in the experiences of various young people. In a case where a minor had knowingly taken advantage of an adult, using the law of contractual capacity to his benefit, there appeared to be injustice arising out of a law which aimed to protect. However, with the passing of the Minors’

Contracts Act 1987 this imbalance has been somewhat remedied. The Act does not remove the protection given to a minor, but improves the position of the adult dealing with him.

The two main provisions are:

• where a minor enters into a contract for a loan, guaranteed by an adult, the guarantee is enforceable against the adult (s.2)

• where a minor unjustly acquires goods under an unenforceable contract, the court may order restitution (handing back) of the goods, or of ‘other property’ representing the goods (s.3).

Loans

The common law position is unchanged, in that a straightforward repayment of a loan under a contract with a minor is unenforceable. Before 1987 a guarantee was also unenforceable, but now, where an adult guarantor agrees to repay the loan if the minor defaults, this is now enforceable against the guarantor.

Restitution

We saw that in Nash v Inman the tailor was left in an unfortunate position of receiving no payment for the eleven waistcoats which the student had been wearing. In order to address this position, section 3 of the Minors’

Contracts Act 1987 gives the court a discretionary power to insist on the handing back of goods under an unenforceable contract with a minor (note that the statute says that the court ‘may’ order restitution, not that they always will). This means that if the minor has been exploited by an adult, the court may well feel that it is just not to order restitution. However, in the event that a minor has taken advantage of an adult, using the law to escape from obligations, then restitution will go some way to providing a remedy for the other party. The courts have the final decision to make on this, but they are the ones who will be in knowledge of the facts of the case.

In addition, where the minor has exchanged goods acquired in this way for other goods, these may be the subject of the restitution order. For example if a minor has bought a car on credit, and has sold it, using the money to buy a motor-cycle, the court may order the minor to hand over the motor-cycle to the seller of the car.

The provisions on restitution do raise some problems. Restitution of goods which hold their value, such as antique jewellery, is satisfactory for the seller, as he receives back what he has lost. However, restitution of clothing which is now second-hand, and of very low monetary value, is less satisfactory. It could be argued that where the court feels that restitution is necessary in such cases, because on the facts it is evident that a minor has manipulated the law to his own ends, then some payment could be ordered. However, there is no provision for such an order at present. Furthermore, in some contracts restitution is not possible, such as in a contract for services or consumable items, such as a meal.

A further problem arises where the original goods acquired by the minor are now represented by money. If they have been sold and the money is kept intact, for example in a labelled envelope, there should not be a problem. However, if the money is used with other money to buy a more expensive item, or is paid into a bank account which contains other money, and from which withdrawals have been made, difficulties exist. No detailed ruling exists at present, so it will

A further problem arises where the original goods acquired by the minor are now represented by money. If they have been sold and the money is kept intact, for example in a labelled envelope, there should not be a problem. However, if the money is used with other money to buy a more expensive item, or is paid into a bank account which contains other money, and from which withdrawals have been made, difficulties exist. No detailed ruling exists at present, so it will