Theme 7

Question 1

Can infants conclude contractual acts?

Answer 1

Infants have no capacity to perform juristic acts of any kind. Infants do not have the capacity to conclude contracts.

Question 2

What happens when an infant enters into a contract alone?

Answer 2

If an infant enters a contract alone, there is no contract and the parties must be restored to the same position that they were in before the purported agreement was concluded.

Question 3

How does an infant enter a valid contract?

Answer 3

In order for a contract to be valid the guardian must act on the infant’s behalf. The infant acquires the rights and duties, not the guardian.

Question 4

Can an infant accept a donation?

Answer 4

An infant cannot accept a donation and the guardian must accept the donation on the infant’s behalf. This is because a form of liability arises by automatic operation of law, and does not depend on whether or not the person is able to understand the legal nature and consequences of their acts

Question 5

What is a minor?

Answer 5

Minors seven years and older have limited capacity to enter into contracts.

Question 6

When can a minor conclude a contract without assitance?

Answer 6

Contracts that create an obligation for the minor need the consent of the minor, however, if there is no obligation guardian assistance isn’t needed.

Question 7

Whats the difference between assisted minors and unassisted minors?

Answer 7

Assisted minors incur full contractual liability, unassisted minors incur no contractual liability.

Question 8

When is a guardian consent valid in a contract?

Answer 8

Guardians will be deemed to have assisted the minors if they have given informed consent to a contract. The guardian must know the material terms of the contract and the surrounding circumstances. If the guardian gives informed consent to the contract, then the minor is assisted.

Question 9

What is the primary principle in Eldistien?

Answer 9

In Eldistien case, it was clarified that contracts concluded without assistance doesn’t make a binding contract for the minor.

Question 10

What was held in the Baddely case?

Answer 10

In the Baddely case, it was held that a guardian must have had full knowledge of the material terms of the contract as well as the type of the contract for it to be ratified.

Question 11

What was held in the Van Dyk case?

Answer 11

In the Van Dyk case, it was held that all is sufficient is the guardian knows that there is a contract and they know what type of contract provided there are no special rules within it. It was further held that written consent is valid if the consent was informed.

Question 12

What was held in the Wood case?

Answer 12

In Woods it’s stated that guardians can enter into contracts on behalf of the minor, and minors can enter into contracts with the guardian at their side.

Question 13

What was held in the Fouche case?

Answer 13

In Fouche it states that minors can go off on their own and can contract with their guardian’s prior permissions or they can enter into contracts and tell their guardians afterwards

Question 14

What was held in Du Toti case?

Answer 14

The father in the Du Toti case knew virtually nothing about the contract that his minor signed, a document was put in front of him and he signed it mechanically. The court deemed the consent worthless.

Question 15

What was the principle about guardians in Du Toti?

Answer 15

Guardians do not need to know every detail of the contract to give informed consent to it. The guardian must know the material terms of the contract.

Question 16

What did Voet state about a limping contract?

Answer 16

Voet stated that if authority is lacking in a contract, the limping contract or negotuim claudicians in Latin. It limos because it has one strong leg and one weak leg (minor)

Question 17

What happens according to Voet in a limping contract to obligation?

Answer 17

The minor has a natural obligation under the contract. This obligation is not enforceable against the minor, the minor cannot be sued for performance. One reason for its importance is that the weak leg can be healed and restored to full strength.

Question 18

What happens according to Voet in a limping contract to the major?

Answer 18

A major who contracts with an unassisted minor is in a very weak position, the major party will have full contractual obligations but the minor has no contractual obligation. The minor can choose to repudiate the contract and the major party will not be able to do anything about this.

Question 19

What does Elidstein’s case state about ratification of a contract?

Answer 19

Edelstein’s case explains that if the minor wishes to enforce the contract, he will have to perform his undertakings. This seems self-evident for he will either sue assisted guardians or when he has attained his majority either of which will imply a ratification of the contract.

Question 20

How can a minor enforce a contract?

Answer 20

If minors wish to enforce performance by the other another party they must fulfil their own corresponding obligations, however, this cannot be enforced upon the minor.

Question 21

How can a minor claim back if they already performed in an unassisted contract?

Answer 21

If the minor has already performed in terms of an unassisted contract they can reclaim performance, either with condictio or with rei vindicatio. The minor’s claim might be reduced if they derive some form of enrichment as a result of the contract.

Question 22

What did the court reduce the minors claim in Baddeley?

Answer 22

In Baddeley, the court reduced the minor claim, on the grounds that he had derived a benefit from his use of the motorbike for three months

Question 23

What does Grotius state about the liability of a minor in a contract?

Answer 23

Grotius states that the minor is liable only for so much as remains in his possession at the time of the action or the thing that replaced it resides

Question 24

When is a guardian liable when they give consent to a minor involved in a contract?

Answer 24

• The guardian will be liable if they provide surety for the minor debt
• The guardian will be contractually liable if the minor acts as the guardian’s agent
• The guardian might be liable on the grounds of unjustified enrichment or negotiorum gestio. Where a third party provides a minor with necessities such as food and clothing. The third party has a claim against the parents, because of the parent’s duty to maintain their children.

Question 25

What happens to minors if they conclude that assisted contracts?

Answer 25

When minors conclude assisted contracts they are bound by the terms of the contract, not the guardians. This means that if a minor doesn’t perform as agreed, the other party must sue the minor they cannot choose to sue the Guardian

Question 26

When can a minor apply for restitutio in integrum?

Answer 26

Minors may apply for restitutio in integrum before attaining majority with the assistance of their guardians. Guardians can also apply for the remedy on the minor’s behalf. If the guardian fails to assist the minor in litigation, a curator ad litem may be appointed This remedy is available for emancipated minors but is denied for fraudulent minors.

Question 27

What are the requirements of restitutio in integrum in?

Answer 27

Valid contract
Entered into when minority
Prejudicial when entered into (skead case)

Question 28

Why do unassisted minors not need restitutio in integrum?

Answer 28

Unassisted minors do not need the restitutio in integrum as unassisted minors are not bound by their contract

Question 29

What is ratification?

Answer 29

Ratification is conduct that ratifies an error in a specific juristic act so that the juristic act retrospectively becomes fully valid and enforceable. It happens with retrospective effects, this only happens once the person is of the majority.

Question 30

How does ratification of the contract happen through?

Answer 30

• The guardian can give informed consent after the minor has entered into the contract
• Minors can ratify the contract once they attain a majority, either expressly or by implication

Question 31

What is ratification by implication?

Answer 31

Ratification by implication is trying to force the other party to perform their duty of the contract

Question 32

What was stated in the Sttutaford case?

Answer 32

In the Sttutaford case, Mr Sttutford bought the motorbicycle as a minor but didn’t expressly ratify the contract when he became a major but continued using the motorbike. It was held that ratification can be shown through the continuation of the use of an item with full knowledge of the legal position.

Question 33

What did boerg state about ratification by former minors?

Answer 33

Boerg held that former minors cannot be held to have ratified their contract by failing to repudiate it after attaining a majority if they were unaware of their right and provided that their ignorance was reasonable and excusable

Question 34

What does Boerg state about tacit fraudulent minors?

Answer 34

Boerg argues that minors could still be regarded as fraudulent even if they didn’t expressly tell the other party that they were over the age of majority but took steps to appear to be older than they were

Question 35

What does Boerg state about tacit misrepresentation?

Answer 35

Boerg further argues that a tacit misrepresentation can also be a lie, so if the minors realise that the other party believes that they are dealing with a major and the minor takes no steps to correct this mistake they will be regarded as a fraudulent misrepresentation

Question 36

What does Boerg state is the problem with holding fraudulent minors to the contract?

Answer 36

Boerg held that the problem with this view is that holding fraudulent minors to their contracts gives them the ability to alter their own legal capacities by lying and the reason for minors’ limited capacity to contract is to protect them from their immaturity of judgment.

Question 37

When will a fraudulent minor incur delictual liability?

Answer 37

A fraudulent minor will only incur delictual liability if all the ordinary elements of the delict have been satisfied. Delectual liability can only arise if the major party to the transaction has indeed suffered some form of delictual damage. They must prove a causal link between the misrepresentation and the damage. Then the minor must prove that the other party was not misled by the misrepresentation

Question 38

What is an emancipated minor?

Answer 38

An emancipated minor is still a minor and has no capacity to do many of the things that minors cannot usually do. They are minors who have guardians who have consent to perform certain juristic acts.

Question 39

What is tacit emancipation?

Answer 39

Tacit emancipation is inferred emancipation from express and implied means but not through neglect

Question 40

What was held in Ahmed caseabout suing of emancipated minors?

Answer 40

In the Ahmed case, it was found that an emancipated minor can be sued without a guardian’s assistance but is restricted to contracts that arise out of the sphere that creates independence.

Question 41

What was held about the definition of emancipation in Ahmed?

Answer 41

Emancipation depends on facts and
circumstances

Question 42

What is the scope of emancipation?

Answer 42

The scope of emancipation is the scope of what the minors has the capacity to do without assistance

Question 43

What is general emanciaption?

Answer 43

If the guardian has given a more general emancipation then the minor can validly contact unassisted more generally.

Question 44

Why are emancipated minors bound to contracts?

Answer 44

Minors will be bound by their contracts because they have guardian’s general consent to conclude all contracts within the scope of their emancipation

Question 45

How does a guardian give emancipation?

Answer 45

A guardian must give consent to the emancipation but there are no formalities for this it can be tacit or implied.

Question 46

What was held in the Sesing case?

Answer 46

In the Sesing case, it was held that consent by a parent to medical treatment does not exclude emancipation. Further, parental neglect and abandonment do not constitute emancipation, emancipation requires the express or implied consent of a guardian. It was also stated that the onus of tacit emancipation lies on the person stating it.

Question 47

Can emancipation be revoked?

Answer 47

Because emancipation is based on guardian consent it can be revoked. The guardian can take back their consent to the emancipation and the minor will no longer be emancipated and won’t be able to bind themself to contracts. (Ex parte Van Den Herver)

Question 48

What are the factors of emancipation held in the Dickens case?

Answer 48

Dickens case, is held on a case by case basis, it was held that the factors to look at when dealing with emancipation are:
- The minor has a job and is financially dependent
- duration of employment
- Whether the minor lives with their parents or how long they have lived away from home
- relationship with the guardian nature
- The minors age

Question 49

What was shown about the capacity to litigate emancipated minors?

Answer 49

Emancipated minors are still minors and cannot marry without consent, not alienation of immovable property without consent. As shown in Ahmed case

Question 50

Can Emancipated minors claim restitutio in integrum?

Answer 50

Emancipated minors should have the benefit of the restitutio in integrum, but do not have capacity to litigate.

Question 51

How can section 28 of the Childrens ACt be used to emancipate?

Answer 51

The section 28 provision in the Children’s Act provisions do not appear to terminate minority, However depending on the circumstances and the details of the court order a section 28 could have the practical effect of emancipating the child depending in the details of the order

Question 52

What does section 17 of the Childrens Act state?

Answer 52

Section 17 of the Children’s Act gives authority to the fact that children are younger than 18

Question 53

What is ratification by guardians after the contract has been concluded?

Answer 53

Ratification can happen if the guardian gives consent after the contract has been concluded

Question 54

What is Resitutiio in integrum?

Answer 54

Resitutiio in integrum is in the same place or in same position as they were in

Question 55

What were the remedies in an assisted contract as requirments in Woods?

Answer 55

The requirements under Woods are serious loss, damage, or prejudice. This is even if consent was given, the prejudice can be seen through his not having a choice to continue payment once a major, the fact that the house was bought at a higher value. And there was no legitimate reason why the payment was put on him. Once prejudice has been proven, then even in an assisted contract, the resitutiio remedy is available

Question 56

What do Bhana and Visser state about fraudulent contracts

Answer 56

Bhana and Visser state that in order to stop a minor from concluding a contract fraudulently, they should be able to invoke a delict claim and the contract should be invaild. If it can be proven that the minor had a maturity level, as the delictual capacity dosent have age limits but is seen on a case by case basis

Question 57

What was held about minors claiming remedies if the entered into a fraudulent contract?

Answer 57

In Louw a minor cannot claim restitutionary relief if induced by the other party to believe that they are an adult. The contract is not valid and binding – minor merely bears consequences of fraud

Question 58

What are the remedies available in a limping contract?

Answer 58

• Rei vindication
• Unjustified enrichment
• Condictio for claim on money