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Children and young persons

Introduction

In the case of children and young persons, the law imposes certain restrictions and gives a degree of protection. Different legislation applies in England and Wales, Northern Ireland and Scotland. The age of majority and the legal age of capacity to enter into contracts is 18 in England and Wales and Northern Ireland, and 16 in Scotland (The Age of Legal Capacity (Scotland) Act 1991), subject to a degree of protection for under 18s.

Under specific legislation, there are certain products and services, the supply of which in the UK is restricted to persons over a certain age. Where the goods or services may only be supplied to persons over 18, the age restriction will override the general law of majority, so this has particular relevance in Scotland.

England and Wales and Northern Ireland

A person attains full age on attaining the age of 18 in England and Wales (Family Law Reform Act 1969 s.1(1)) and in Northern Ireland (Age of Majority Act (Northern Ireland) 1969). The legislation refers to a person who is not of full age as a ‘minor’ instead of as an ‘infant’. In this section, the term minor although some legislation (e.g. the Children Act 1989) uses the term ‘child’.

At common law, a contract with a minor is generally voidable (i.e. cancellable) at the instance of the minor, although it is binding upon the other party. Exceptions to this rule are contracts for “necessaries” and certain other contracts such as contracts of service and apprenticeship, if they are clearly for the minor's benefit. Such types of contract are valid and binding upon a minor. In such cases the question to be judged is whether the contract is or is not on the whole beneficial at the date when it is made (see below).

Contracts which are obviously prejudicial to a minor are wholly void (i.e. not legally effective). In general, a minor cannot give a valid receipt or a valid release of a legal claim, but a married minor or a minor who has formed a civil partnership has power to give valid receipts for all income to which he is entitled in the same way as if he were of full age.

If a contract is unenforceable against the minor (or he repudiates it) because he was a minor when the contract was made, the other party may still have legal rights arising out of the contract. The fact that the contract does not bind the minor does not of itself entitle the minor to recover the value of benefits which have been conferred by the minor on the other party to the contract. A minor who wishes to recover money paid under a contract which he has elected to avoid can only do so where he can show that there has been a ‘total failure of consideration’ (i.e. the other party performed no part of the contract) for the payment which has been made.

Where a minor has obtained a loan or incurred a debt by a fraudulent misrepresentation as to his being of age, he cannot be sued for it at common law but he may have to make restitution under the rules of equity. In addition, the court has power to require the minor to transfer to the other party any property acquired by the minor under the contract, or any property representing it. The court will only do so if it finds that it is ‘just and equitable’ (Minors’ Contracts Act 1987).

Scotland

The Age of Legal Capacity (Scotland) Act 1991 (c.50) is an Act of the Parliament of the United Kingdom applicable only in Scotland which replaced the pre-existing rule of pupillage and minority with a simpler rule that a person has full legal capacity at the age of 16.

Under the previous Scots law (derived from Roman law), a child to the age of 12 if female, or 14 if male, had legal status of ‘pupil’ and was under legal control of an adult (usually parent or parents) referred to as the ‘tutor’. From that age until the age of majority the child had legal status of a ‘minor’, and might have a responsible adult deemed "curator" or have no responsible adult. The Scottish age of majority was originally 21 until reduced to 18 by the Age of Majority (Scotland) Act 1969. Pupils lacked any capacity to enter into legal contracts. Minors had capacity to enter into contracts, which included the capacity to make a will, but subject to rights to have these reduced by a court in certain circumstances, and sometimes requiring their curator’s consent. The rules as to when contracts did or did not require consent, and which were potentially reducible by court were complex.

Under the Age Legal Capacity Scotland Act 1991, the old rules and terms were replaced. The basic rule under the replacement regime is that under 16s have no legal capacity. However, minors under 16 may enter into a contract of a kind commonly entered into by persons of their age group, and on terms which are not unreasonable. In all other cases the legal Guardian of the under 16 has legal right to deal with all contractual and consent matters on the child's behalf.

From age 16 a person has full legal capacity to enter into any form of agreement. This is subject to protection for younger persons by means of a right while under the age of 21, to have a contract made between the ages of 16 and 18 set aside as a "prejudicial transaction". The test is whether a reasonably prudent adult would not have entered into such a contract, and the person has been prejudiced by entering into that contract. A contract may be approved in advance by a court, in which case it cannot later be reduced. Contracts entered into in the course of the young person's business, or where they misrepresented their age also may not be reduced.

Selling goods and services to a minor (United Kingdom)

Voidable contract

As with any other type of contract, a minor (i.e. person under the age of 18 in England and Wales and Northern Ireland and under 16 in Scotland) lacks legal capacity to enter into a contract to purchase goods or services. At common law, the minor (but not the other party) may therefore ‘avoid’ or cancel the contact.

However, if the supplier has performed the contract and the minor has received the benefit of the goods or services, under the rules of equity the court will only allow the contract to be reversed if the minor can restore the supplier to the position he was in before the contract. In the case of goods this might be possible, but not if the goods were specially made or perishable. In the case of services, it is difficult to see how the services could be ‘returned’.

Under the Minors’ Contracts Act 1987, if a minor avoids a contract, the court may, if it is just and equitable to do so, require the minor to transfer to the supplier any property acquired by the minor under the contract, or any property representing it.

Binding contracts

As an exception to the general rule, a contract will be binding on the minor if it is a:

(a) a contract for ‘necessaries’, or analogous to a contract of employment, apprenticeship or education; and

(b) beneficial to the minor.

Sale of goods which are ‘necessaries’

A minor is bound to pay for ‘necessaries’ supplied to him under a contract. In the case of goods, necessaries means goods suitable to the condition of life of the minor and to his actual requirements at the time of sale and delivery. The minor is bound to pay a ‘reasonable’ price for the necessaries, not necessarily the actual price (Sale of Goods Act 1979 s.3).

‘Necessaries’ are not defined in the Sale of Goods Act. However, the leading caseĀ  - (over a hundred years old now) held that necessaries are those things without which a person cannot reasonably exist and include food, clothing, lodging, education or training in a trade and essential services. The ‘condition of life’ of the minor means his social status and his wealth. What is regarded as necessary for the minor residing in a stately home may be unnecessary for the resident of a council flat. Whatever the minor's status, the goods must be suitable to his actual requirements:

* Nash v. Inman [1908] 2 KB 1, CA): sale of fancy waistcoats to a minor who the court found already had enough; held they were not necessaries.

Contracts for the supply of services or analogous to contracts of employment, apprenticeship or education

Where a contract is for teaching, instruction and employment, it has been held to be for ‘necessaries’. Case law examples include:

* Roberts v Gray [1913] KB 520, CA; a minor was held liable for his failure to perform a contract for a tour with the plaintiff, a noted billiards player. It was a contract for the instruction of the minor. The court ruled that the contract was binding on him from its formation.

* Chaplin v Leslie Frewin (Publishers) Limited [1966] Ch.71: a minor entered into a contract with a publisher for the publication of a ghost-written biography of the minor; the contract was held to be for ‘necessaries’.

* Doyle v White City Stadium Limited [1935] 1 KB 110: a minor agreed to be bound by the regulations of the national boxing governing body, which allowed him to earn a living as a professional boxer.

* Denmark Productions Limited v Boscobel Productions Limited (1967) 111 Solicitors Journal 715: a contract between a group of under-age musicians (the Kinks) and their manager/agent was held to be analogous to a contract of employment.

If the court considers that the contract with the minor was not for ‘necessaries’ or not beneficial to him, the court will not enforce the contract. Examples include:

* De Francesco v Barnum 45 Ch D 430 (1889): a female aged 14 years old, had an agreement to train as a dancer on stage; the contract bound the girl for seven years, were required not to marry, and had no guarantee that she would be provided with work. The court held that the contract was held invalid.

* Shears v Mendeloff (1914) 30 TLR 342: a contract between an under-age professional boxer and his manager, in which it was provided that the boxer could not take any engagements under any other management for three years, was held to be a trading contract, and not one for ‘necessaries’.

* Proform Sports Management Ltd v Proactive Sports Management Ltd and another [2006] EWHC 2903 (Ch): the football player Wayne Rooney, at age 15 already with Everton FC, entered into an exclusive two year representation agreement with Proform. Under the rules of the Football Association, he could not sign a professional playing contract with a club until he turned 17. Although he would turn 17 in the last few months of his agreement with Proform, the court found that Rooney did not need to enter into a professional playing contract in that period. Further, Rooney did not require the services of an agent to enter into a professional playing contract in any event. Therefore Rooney’s agreement with Proform did not enable him to earn a living or provide him with education or training. Consequently, the court concluded that Rooney’s agreement with Proform was more analogous to the contract in Shears v Mendeloff, rather than those in the Doyle, Denmark Productions or Kinks case.

[Page created: 14/06/2015]

 

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See also:

Age restricted products and services