The document discusses the contractual capacity of minors under the age of 18. A minor under 7 has no capacity, while those between 7-18 have limited capacity and require a guardian's assistance or consent to enter contracts. If a minor enters an unassisted contract, it is voidable but can be ratified by the guardian. The rights of the minor and contracting party are analyzed should the contract be void.
The document discusses the contractual capacity of minors under the age of 18. A minor under 7 has no capacity, while those between 7-18 have limited capacity and require a guardian's assistance or consent to enter contracts. If a minor enters an unassisted contract, it is voidable but can be ratified by the guardian. The rights of the minor and contracting party are analyzed should the contract be void.
The document discusses the contractual capacity of minors under the age of 18. A minor under 7 has no capacity, while those between 7-18 have limited capacity and require a guardian's assistance or consent to enter contracts. If a minor enters an unassisted contract, it is voidable but can be ratified by the guardian. The rights of the minor and contracting party are analyzed should the contract be void.
The document discusses the contractual capacity of minors under the age of 18. A minor under 7 has no capacity, while those between 7-18 have limited capacity and require a guardian's assistance or consent to enter contracts. If a minor enters an unassisted contract, it is voidable but can be ratified by the guardian. The rights of the minor and contracting party are analyzed should the contract be void.
52050 COURSE NAME ASSIGMENT NUMBER DUE DATE: Business Law 1: Individual Assignment 2nd April 2023
Discuss the definition and contractual capacity of a minor.
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https://www.coursehero.com/file/209617603/Business-Law-Individual-Assignmentdocx/ Contractual capacity is the capacity to perform juristic or legal acts. A minor is considered as a person that is below the age of 18 years, (Botha et al .2019).
A minors that is under the age of 7 years has no contractual capacity at all. They cannot perform any legal act. Valid legal acts can however be performed on their behalf by their guardian or parents, (Botha et al .2019).
Minors between the ages of 7 and 18 years have limited contractual capacity, they need the assistance of their parents or guardians to perform a legal act. Their contractual capacity is limited because they need the assistance of another person, (Botha et al .2019).
In the case where the minor is 7-18 years old and enters into a contract without the assistance of the guardian, the law will protect the minor and hold the other party liable and the contact is regarded as being voidable. Tanne v Foggit 1938 TDP 43, it is mentioned that the minor entered into a contract without the assistance of the guardian and the minor is not bound by the contract and is thus not liable to perform in terms of the contract.
In terms of the Children’s Act 38 of 2005, minors are children between the ages of 7 to 18 years old. When a minor enters into a contract, they are required to obtain the consent of their parents or guardians or in special cases, they may approach a court for assistance, the status of a minor informs us that they only have limited contractual capacity, therefore if a minor enters into an assisted contract that means the child was assisted by the guardian and has consented to the contract, this can be done before or at the end of the contract being concluded but unassisted minors therefore cannot be bound by the terms of a contract, (Botha et al .2019).
Example of Van Dyk v South African Railways and Harbours 1956 (4) SA 410 (W), the guardian assisted the minor in entering into the contract, the guardian is unaware of the specific terms of the contract and consented to the nature and the type of the contract.
If a party unknowingly contracts with a minor who has not yet obtained consent, the contract may still remain valid and enforceable if the parent or the guardian ratifies the contract. The effect of ratification is retrospective and the contract will be deemed to have been valid from the time of conclusion, the contract becomes legally binding and the guardian can ratify the unassisted minor’s contract before the minor becomes a major, (Botha et al .2019). The minor can also ratify the contract being a minor when the minor reaches majority or major has reasonable time to decide to reject or ratify the unassisted contract entered into as a minor.
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https://www.coursehero.com/file/209617603/Business-Law-Individual-Assignmentdocx/ Consent may be in the form of it being expressed meaning it can be written or verbal, implied circumstances of the guardian’s behaviour show that the guardian consents to the minor entering the contact, (Botha et al .2019).
Example of Stuttaford and Co. v Oberholzer 1921 CPD 855, it is stated that a minor that enters into an unassisted contract can be bound by the contract if the guardian ratifies the contract either expressly or tacitly when the minor reaches majority, (Botha et al .2019).
A minor can be emancipated by court or through tacit emancipation discuss the
distinction.
Emancipation of a minor is the freedom to contract independently which is granted to a minor
by his or her parents or guardian. This also refers to a minor entering into a contract with the assistance of his or her guardian. This status is thus granted only for the minor to participate in a specific activity and the parent or guardian must give tacit or expressed consent.
A minor acquires emancipation by:
- An application to the court, under circumstances that the parent or guardian refuses, which means that the minor is legally a major in the eyes of the law and may therefore contract without parental assistance as a major would.
- By way of tacit or expressed consent by the guardian, the law also regards a minor to be emancipated tacitly by his or her guardian therefore the guardian expressly or tacitly regarded the minor as fully independent to enter into activities as an adult, the person who claims that the minor is emancipated must thus prove with regards to;
- The relationship of the minor and the guardian granting the minor’s independence.
- The minor does not live with the guardian or parents, (Botha et al .2019).
In the case of Dickens v Daley 1959 (2) 11 (N); a minor is living independently and conducting his life as a major is tacitly emancipated by his guardian, (Botha et al .2019).
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https://www.coursehero.com/file/209617603/Business-Law-Individual-Assignmentdocx/ With full reference to the facts above case, advise John fully on his legal rights should he choose to recover his money from John (Refer to relevant case law)
The legal position of a minor in an unassisted contract in terms of common law is that the law protects the minor and holds the other party liable and is therefore voidable. In the case of Tenne v Foggit 1938 TDP 43, in the case of the minor entering into a contract without his or her guardians assistance the minor is therefore not bound by the by the contract and is also not liable to perform in terms of the contract.
A contract in this nature is known as a limping contract because it can only be enforced against one of the two parties therefore the major who has the full contractual capacity is liable. Thus the rights and duties of both parties has to be considered. Where the contract continues if the unassisted contract is ratified either by the guardian or the minor when child becomes a major and the contract is regarded as an assisted contract and the legal position is the same as an assisted minor’s contract, therefore the contract is valid, the minor automatically is responsible to carry out the right and duties of the contract and is liable to the contracting party, the minor and the contracting party must perform in terms of the contract, (Botha et al .2019).
When the contract does not continue if it is repudiated by either the guardian or the minor when the minor reaches majority the contract is regard as being void and the minor can recover everything that has been performed under the contract from the contracting party, based on unjustified enrichment with regards to the money and rei vindicato as there is no contract the minor can get his money back based on unjustified enrichment on the other hand the minor has to return any property that belongs to the contracting party. In this case the minor entered into a contract with the contracting party with a cell phone contract, the minor is not liable for the contract as minor entered into the contract without the his guardian’s assistance and is therefore not contractually liable and the minor does not have the money to pay the outstanding money as with also the case of Tanned v Foggit 1938 TDP 43.When the contract is declared void both the parties must be returned to their positions before the contract was entered into through restitution in integrum.
In terms of the legal position of the other contracting party in an unassisted contract in terms of common law, the other party cannot use the law of contract but can use other branches of law being unjustified enrichment and rei vindicatio, the other party can demand the minor to return money or property that was delivered to the minor in terms of the contract but the
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https://www.coursehero.com/file/209617603/Business-Law-Individual-Assignmentdocx/ minor is required to return what is left of the performance at the time the other contracting party demands the return of the goods or money, in this case the minor must return the cell phone, (Botha et al .2019).
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