Chapter 5 - Capacity To Perform Juristic Acts

Question 1

Introduction

Answer 1

All persons, whether natural or juristic, have legal capacity and therefore may acquire rights and duties.

However not all legal subjects have contractual capacity. Only natural persons have contractual capacity- allowing the, to conclude contracts by which those rights and duties are conferred.

Question 2

Factors that influence natural capacity

M
M 
A
P
I 
I

Answer 2

Marriage 
Mental deficiency 
Age 
Prodigals 
Influence of alcohol and drugs 
Insolvency

Question 3

Age - Minors

Answer 3

Minors

Infants
>0-7 years
>Have no understanding or judgement of contractual obligations
>Have NO capacity to act or be in contracts
E.g they may not even accept donations

General minors
> Unmarried ages 7-18 years
18 y/o = Majority age

> Have understanding but no judgement
Limited capacity to enter into contracts
General rule - the parent/guardian must assists minor into entering into a valid contract

Question 4

How is a minor assisted into a contract?

Answer 4

Guardian

• present and consenting at the time of contract
• prior authorisation
• ratifying the contract after the fact

Effect of guardians assistance of contracting on behalf of the minor:

• minor and 3rd party have contractual obligations
• contract becomes enforceable both by and against the minor
• Generally the guardian accepts no personal liability or rights under the contract

Question 5

Contract which is to the minors detriment

Answer 5

Minor may apply to High Court for cancellation within one year of reaching majority.

• they must prove that contract was to the detriment of the minor at the time of conclusion
• restitution of everything performed
• Minor can conclude a contract without assistance if it is to his/her benefit
  E.g accept donation

Question 6

Minors - statutory exceptions

Answer 6

Minors will have capacity to act:

Female minor terminate pregnancy without parents consent

Minor +17 may obtain learners licence

Minor 7+ years may withdraw money

16+ may make valid will

16+ ,may make deposits at a bank

12+ may consent to medical treatment

Question 7

Immovable property and minors

Answer 7

Here a guardian and Master of high Court must consent to sale of immovable property valued less than 100k

100k + then guardian and judges of high court must consent to sale of immovable property

Question 8

Age - Tacit emancipation

Answer 8

Emancipated minor has capacity to enter into contracts without assistance of his/her guardian

Guardians consent may be express or tacit

Tacit emancipation = guardian may allow minor to be economically independent

Emancipation is not a means of terminating minority
E.g. emancipated still needs guardians permission to get married.

Emancipation DOES NOT give full contractual capacity to a minor

Question 9

Fraudulent misrepresentation of majority

Answer 9

If a minor poses as a major and induces a 3rd party to contract then minor should be held liable as a major
- also be liable in delict

Cannot claim restitution

Question 10

Marriage

Answer 10

Every martial regime has particular patrimonial consequences and impacts a spouses capacity to contract.

All marriages that take place in SA are regulated by the Matrimonial Property Act 88 of 1984

Question 11

Two types of martial property regimes

Answer 11

Marriage in community of property
& marriage out of community of property

Marriage out of community may include or exclude accrual system

Only spouses who are married in co,Munich of property have limited contractual capacity in certain circumstances

• this is because there is a joint estate

Written consent is needed when selling immovable property or verbal or tacit consent is needed for selling movable assets of common household.

Question 12

Marriage continued

Answer 12

Parties are automatically marked in community of property, unless they agree to entering into ante nuptial agreement

Question 13

Types of consent needed for agreements

Answer 13

Written consent attested by two witnesses
- alienation of immovable property, suretyship agreements

Written consent
- pledging of securities eg. Insurance policies, jewellery.

Informal consent
- eg sales of household items or receiving inheritance

Question 14

Difference between ratification, rectification and restitution

Answer 14

Ratification
- the action of giving formal consent to a contract making it officially valid

Rectification
- the act of putting something right

Restitution
- the restoration of something lost or stolen to its proper owner

Question 15

Mental deficiency

Answer 15

A person who is mental condition affects their understanding and the consequences of the contact is incapable of forming the will or consciousness to conclude a binding contract

Thus lacking the capacity to conclude a contract

• once a person has been certified as mentally deficient the burden of proof shifts. In such a case it must be proved that the person indeed had the capacity to act, in spite of the certification.

Whereas in the case of a person not certified, it must be proved that the person had no capacity to act in spite of the fact that he or she has not been certified as mentally deficient

Question 16

Influence of drugs and alcohol

Answer 16

If the person is intoxicated to such an extent that they conclude the contact which they cannot understand, the nature and consequences thereof, then the contract is void because the contracting party had no capacity to act.

• Drugs refers to legal or illegal drugs
• The person must be in the near state of automatism

Question 17

Prodigals

Answer 17

A prodigal is a person who habitually spends his or her money recklessly and extravagantly.

Such a person still has capacity to act until the High Court actually declares them a prodigal.
Then a curator must be appointed to look after the prodigals estate and affairs.

Contracts, which have their affect on the prodigals estate, concluded without assistance of the curator are voidable.

Question 18

Unrehabilitated insolvents

Answer 18

There are provisions of the insolvency act 24 of 1936 which affect the insolvent contractual capacity to act after sequestration of their estate.

The solvent may not dispose of any of the assets that were in their estate at the time of sequestration without the consent of his or her trustee, the contract will be voidable at the option of the trustee

Question 19

Juristic persons

Answer 19

Juristic persons have full contractual capacity