Tuesday, 22 May 2018

THE CONTRACTUAL CAPACITY OF AN INFANT

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A contract is a binding agreement made between two or more parties which the law would enforce. A contract will only be valid and enforceable if it has the following elements:

Offer, Acceptance, Consideration, Capacity to contract and Intention to enter into legal relations. When any of the elements is absent, the contract is void and unenforceable.

Capacity to contract refers to the legal ability to form or enter into a binding contract. The law recognises certain categories of persons as lacking the capacity to contract, or having a limited capacity to contract, depending on the existence of certain factors. The restriction placed by the law on the capacity of some category of persons to contract is aimed at protecting them and preventing them from being exploited by others.

The recognised category of persons who have some restrictions on their contractual capacity are infants, illiterates, lunatics and drunkards.
This article will be concerned with the contractual capacity of an infant. It must however be stated that this is one of the aspects of the Nigerian law where there exists a paucity of judicial authorities, thus, some legal principles of law in this area of the law have not yet being pronounced upon by the courts.  It is against this background that the contractual capacity of a child would be considered.

WHO IS A CHILD?
It formerly used to be the position of the law in Nigeria that an infant/child was one who had not attained the age of 21, accordingly, a person who had not attained the age of 21 lacked capacity to enter into a contract; this was the position of the law under the Infant Relief Act of 1874[1] This position has been altered by the Child’s Right Act.

A child is defined under the Child’s Right Act as a person who is under the age of eighteen (18) years.[2]
It is provided under the Child’s Right Act that no child shall enter into a contract.[3] However, there is no absolute bar on the capacity of a child to enter into a contract.

The Act provides that any contract entered into by a child for repayment of money lent or for payment of goods supplied to the child shall be void.  These forms of contracts are void from the very time the contract is entered into and the child cannot upon attaining majority (becoming an adult)[4] ratify the contract. If any of these prohibited contracts are entered into with an infant and the infant upon attaining majority ratifies the contract, the other party cannot sue the child on that contract, because the child lacked capacity to enter into the contract from the very beginning and can therefore not ratify a void contract.

The only contract a child has capacity to enter into is a contract for necessaries. The Sale of Goods Act[5] also provides that where necessaries are sold and delivered to an infant, he must pay a reasonable price for the goods sold and supplied to him.

What are Necessaries? Necessaries are those things without which an individual cannot reasonably exist. They include food, clothing and shelter. ‘As the proper cultivation of the mind is as expedient as the support of the body, instruction in art or trade, or intellectual, moral and religious information may be a necessary also. Hence needs may vary according to the state or condition of the infant himself as well as his position in the society’.[6]  What constitutes necessaries for an infant would be dependent on the peculiar needs of the child. In a certain case, the court held that a wrist watch was a necessary item for an undergraduate, thus the contract could be enforced against the infant and in another case held that a contract for the supply of fancy clothes to an undergraduate student who already had adequate clothes was unenforceable, not being a contract for necessaries.

The law is silent on the remedies available to a party whom an infant misrepresents his age to in order to enter into a contract with him. However, what remains clear is that the law will not allow itself to be used to perpetrate fraud, thus, an infant who enters into a contract for the supply of goods by misrepresenting his age will be compelled to return the goods to the owner if he still has them in his possession, the difficulty arises when he has parted with the goods.

A child can enter into a contract of apprenticeship and other beneficial contracts of service where the contract is for the benefit of the infant. However, it should be noted that any form of forced or exploitative labour is expressly prohibited.[7]
The Child’s Right Act provides that its provisions supersedes the provisions of other enactments relating to a child, so in the event of any conflict between the provisions of the Child’s Right Act and the provisions of any other law, the inconsistent provision of that other law shall be void and the provisions of the Child’s Right Act shall prevail.[8]
 
 

[1] This was an English Law which applied to Nigeria.
[2] Section 277 of the Child’s Right Act
[3] Section 18 of the Child’s Right Act
[4] Attaining 18 years of Age
[5] See section 2
[6] Chapple V. Cooper (1844) 13 M. & W 253
[7]The nature of work an infant is permitted to engage in is provided for under the Child’s Right Act and the    Labour Act.
[8] Section 274 of the Child’s Right Act.

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