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