The problem raises two primary issues. Firstly, when does a person qualify for the restitutio in integrum remedy? Secondly, if the restitutio is awarded, what orders is the court likely to grant Victoria? This essay will examine both of these issues in turn. 1.
When does a person qualify for the restitutio in integrum remedy? The restitutio in integrum is the minor’s ‘special’ remedy, available to those minors who entered into a prejudicial contract assisted by a guardian. The requirements are that the minor has to have been a minor at the time the contract was entered into, he or she is bound by the contract through assistance, the minor could not have been fraudulent and, lastly, the contract had to be inherently prejudicial at the time it was entered into. In principle, Victoria could approach the courts for this relief in order to restore the status quo ante (return things to the way they were before the contract was entered into). Wood v Davis presents a clear example of what the court deems to be ‘serious and substantial’ prejudice to the minor. In this case, the house purchased was not worth the price the minor paid for it, there were onerous contractual terms, and the surrounding circumstances in which the contract was concluded were also prejudicial because the minor was at boarding school and it was his family who in fact occupied the house. There are additional factors that determine whether a court will grant the restitutio in integrum. Firstly, whether or not the minor acted fraudulently- in Fouche v Battenhausen, all other requirements of the remedy were satisfied but the restitutio was not granted on account of the minor’s fraudulence when concluding the contract. Secondly, whether prejudice had occurred at the time the contract was entered into because “harm arising through a change in circumstances or by accident is not a ground for relief” - in Skead v Colonial Banking, the contract had become disadvantageous to the minor only later,...
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