9. CAPACITY TO CONTRACT
1. Capacity of Minors
A minor is someone who has not reached the age of majority (18 years in Kenya.) As a general rule, a minor is not bound by any contract made during his minority. There are 3 exceptions to this: • Contracts for necessaries
• Contacts of educational or employment or training nature • Certain contracts which are avoidable.
The term necessaries is not restricted to things which are required to maintain a base existence such as bread and clothes but includes articles which are reasonably necessary to the minor having regard to his station in life. A watch for example, a radio or a motor cycle may be considered necessaries & not articles of mere luxury.
An engagement ring may be a necessary but not a diamond necklace bought for the minors by her fiancée. Goods are not the only necessaries, the hire of a car may be a contract for necessaries. If the necessaries are goods, the minor is liable only when the goods are suitable for his condition in life, necessary to his requirements at the time of sale and necessary for his requirements at the time of delivery. A minor must pay a reasonable price for necessaries supplied to him.
Although the goods supplied may be within the class of necessaries, they may not be necessary to the particular minor.
Nash v. Inman (1908)
Inman, a minor, who was an undergraduate at Cambridge bought 11 fancy waist coats from M on credit. He was at the time adequately provided with clothes. It was held the waist coats were not necessaries and was not liable to pay for any of them.
Education and Employment contracts for the minor’s benefits
Not every contract for the benefit of a minor is binding on him. But contracts for his education service and apprenticeship or for enabling him to earn a living are binding unless they are detrimental to the interests of the minor. E.g. apprenticeship on how to be a thief!
A contract relating to the minor’s education, which is not detrimental to his interest, can be enforced although it is to be performed in the future. E.g. a contract by a minor who is a guitar player to tour and play the guitar matches with a well-known singer. In these cases if contract as a whole is for the benefit of the minor it will be binding on him.
A contract of apprenticeship is a contract of special character. If it is broken, the apprentice can claim damages not only for his loss of earning for the remainder of his training period but also for the reduction of his future prospects.
When a minor is engaged in trade, contracts entered into by him in the way of his trade however much to his benefit, are not binding on him. He is therefore not liable to pay for goods bought for trading purposes.
When a minor acquires an interest in a subject of permanent nature which imposes a continuous liability on him. The contract cannot be enforced against him during his minority but after he attains full age, it will be binding on him unless he avoids it within a reasonable time. Contracts in this class include leases, partnership, and holding of shares in a company.
Goode v. Harrison (1821)
A minor who has a partner in a partnership took no steps to avoid the partnership upon attaining his majority. He was held to liable for the debts of the partnership incurred after he came of age.
• Recovery by minor
Money paid by a minor under a contract which is not binding on him can be recovered by him only if there has been a complete failure of consideration.
Similarly if a minor has benefited in a void contract for the sale of goods other than necessaries, he cannot return the goods to recover the money he has paid for them. Again if a minor delivers goods under a contract, which is not binding on him, he cannot recover them, unless there is a total failure of consideration.
• Recovery against the minor
In cases where the minor is...
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