1

Task

Hakainde Hamududu is the proprietor of a computer training school. He has one of his
brightest students, Banda Tasa who has been pursuing a programming course with his school
for two years. Banda Tasa being unable to pay the tuition fees charged by the college entered
into a contract with Hakainde Hamududu. Terms of this contract were that, for the award of a
tuition waiver for the course, Banda Tasa would work for Hakainde Hamududu for two years
after graduation. During the period of instruction, Banda Tasa obtained from Nevers Chipimo
a laptop computer valued at K18, 000 and a gold wrist watch valued at K15, 000. Nevers
Chipimo has been trying for some time to get Banda Tasa to pay what he owes but without
success. Banda Tasa has in the meantime completed his studies and has been offered a
lucrative position with Microsoft Inc. which he has accepted.

Both Hakainde Hamududu and Nevers Chipimo come to you for advice. Nevers Chipimo
informs you that Banda Tasa's friend Elias Nawaki had informed him that he last spoke to
Banda Tasa on his 18th birthday two days ago and that Banda Tasa had indicated to him that
he had no intention of paying Nevers Chipimo.

Advise both Hakainde Hamududu and Nevers Chipimo.

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Introduction

This paper discusses the capacity of minors to enter into contracts. Discourse shall be made
on the general position of a minor’s contractual capacity and the important exceptions to that
general position. Recourse shall further be had to statutory and case law to buttress my
discussion. The principles discussed shall later be applied to the facts of the situational case
given.

Under English law, a minor is a person under the age of 18 years. At common law persons
under the age of 21 were designated “infants” and had only a limited capacity to contract.
From January 1, 1970, the Family Law Reform Act 1969 reduced the age of majority to 18
and authorised the term “minor” as an alternative to “infant.” “Minor” is now the preferred
term.1

In England, the capacity of a minor to contract is still regulated by the common law, modified
by the Minors’ Contracts Act 1987 which repealed the Infants Relief Act 1874.2 The age of
contractual capacity in Zambia is far from clear. The reason is obvious. The English statute
which reduced the age of majority from 21 to 18 years is not applicable to Zambia. In the
absence of local legislation on the age of majority for contractual capacity, it can be rightly
assumed that in Zambia, contracts made by minors are still generally governed by the
common law, parts of the Sale of Goods Act 1893, the Infants Relief Act 1874 and the
Betting and Loans (Infants) Act 1892 all extended to Zambia by virtue of section 2 of the
English Law (Extent of Application) Act3.

The general principle is that a contract made by a minor with an adult is binding on the adult
but not on the minor. If, after attaining his majority, he ratifies it by an act confirming the
promise he made when a minor, he is bound. There need be no consideration for the act of
ratification. A contract by a minor is not void and any money or property transferred by him
under the contract can be recovered only if there has been a total failure of consideration.
There are three exceptional cases where a minor is to some extent bound. 4 These are:

1
Brownsword, R. Smith and Thomas A Casebook on Contract. (12th Ed.). (2009). London: Sweet & Maxwell. p.
734
2
Ibid.
3
Chapter 11 of the Laws of Zambia
4
Supra note 1 p. 734
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executed contracts for necessaries, contracts beneficial to the minor and contracts which are
enforceable unless the minor repudiates them.

1. Executed contracts for necessaries are valid.

Necessaries are defined in section 2 of the Sale of Goods Act 1893 as: “...Provided that where
necessaries are sold and delivered to an infant, or minor, ... he must pay a reasonable price
therefore. Necessaries in this section mean goods suitable to the condition in life of such
infant or minor or other person, and to his actual requirements at the time of the sale and
delivery.”

“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. 5

Keenan remarks: if the goods are deemed necessaries, the minor may be compelled to pay a
reasonable price which will usually, but not necessarily, be the contract price. The minor is
not liable if the goods, though necessaries, have not been delivered. If the goods have a utility
value, such as clothing, and are not merely things of luxury, for example, a diamond
necklace, they are basically in the category of necessaries. Whether the minor will have to
pay a reasonable price for them depends upon:

(i) the minor’s income which goes to his condition in life. If he is wealthy, as where he has a
good income from a trust, then quite expensive goods may be necessaries for him, provided
they are useful.

(ii) the supply of goods which the minor already has. If the minor is well supplied with the
particular articles then they will not be necessaries, even though they are useful and well
within his income. 6

Thus, in Nash v Inman7 a tailor sued a minor to whom he had supplied clothes, including 11
fancy waistcoats. The minor was an undergraduate at Cambridge University at the time. It

5
Supra note 1 p. 734-35
6
Keenan, D. (15th Ed.). (2007). Smith and Keenan’s English Law. Harlow: Longman. p. 305
7
[1908] 2KB 1
 4

was held that, although the clothes were suitable according to the minor’s station in life, they
were not necessary, as he already had sufficient clothing.

2. Contracts beneficial to the minor

Contracts for the minor’s benefit are those that would improve the minor’s position in life.
They include contracts of service, apprenticeship and education. 8

Thus, in Doyle v White City Stadium9 Doyle, a minor, obtained a professional boxer’s licence,
which was treated as a contract of apprenticeship. The licence provided that he would be
bound by the rules of the Boxing Board of Control, which had the power to retain any prize
money if he was ever disqualified in a fight. He claimed that the licence was void, as it was
not for his benefit; but it was held that the conditions of the licence were enforceable. In spite
of the penal clause, it was held that, taken as whole, it was beneficial to him.

Further, in Roberts v Gray10 The defendant wished to become a professional billiards player
and entered into an agreement with the claimant, a leading professional, to go on a joint tour.
The claimant went to some trouble in order to organise the tour, but a dispute arose between
the parties and the defendant refused to go. The claimant now sued for damages of £6, 000.

Held: the contract was for the minor’s benefit, being in effect for his instruction as a billiards
player. Therefore, the claimant could sustain an action for damages for breach of contract,
and damages of £1, 500 were awarded.

A minor is bound by a contract of apprenticeship or employment, as long as it is, on the

whole, for their benefit. A contract is not binding on a minor merely because it is proved to
be for the minor’s benefit but a contract which would otherwise be binding as a contract for
necessaries is not so if it contains harsh and onerous terms. 11

Thus, in De Francesco v Barnum12 it was shown that so far as beneficial contracts are
concerned, the subject matter of the contract is not decisive. Two minors bound themselves in
contract to the claimant for seven years to be taught stage dancing. The minors agreed that

8
Judge, S. (2nd Ed.). (1999). Business Law. London: Macmillan Press Limited. p. 88
9
[1935] 1 KB 110
10
[1913] 1 KB 520
11
Kelly, D., Holmes, A., & Hayward, R. (2002). (4th Ed.). Business Law. London : Cavendish Publishing
Limited. p. 137
12
(1890) 45 Ch D 430
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they would not accept any (marriage) engagements without his consent. They later accepted
an engagement with Barnum, and the claimant sued Barnum for interfering with the
contractual relationship between himself and the minors, to enforce the apprenticeship deed
against the minors and to obtain damages for its breach. The contract was, of course, for the
minors’ benefit and was prima facie binding on them. However, when the court considered
the deed in greater detail, it emerged that there were certain onerous terms in it. For example,
the minors bound themselves not to marry during the apprenticeship. Further the claimant
could terminate the contract if he felt that the minors were not suitable for the career of a
dancer. It appeared from the contract that the minors were at the absolute disposal of the
claimant. It was held that the deed was an unreasonable one and was therefore, unenforceable
against the minors.

Further, trading contracts of minors are not enforceable no matter how beneficial they may be
to the minor’s trade or business. The justification behind this rule is that when a minor is in
trade, his capital is at risk and he might lose it, whereas in a contract of service there is no
likelihood of capital loss.13

Thus, in Mercantile Union Guarantee Corporation v Ball14 The purchase on a hire-purchase

terms of a motor lorry by a minor carrying on a business as a haulage contractor was held not
to be a contract for necessaries, but a trading contract by which the minor could not be bound.

3. Valid contracts that a minor may avoid

Some contracts are binding on the minor unless he or she repudiates. These are usually
contracts by which the minor acquires an interest of a permanent nature in the subject matter
of the contract. Such contracts bind the minor unless he takes active steps to avoid them,
either during his minority or within a reasonable time thereafter. Examples of voidable
contracts are obtaining shares in companies, leases or real property and partnerships.15

If the minor has made payments prior to repudiation of the contract, such payment cannot be
recovered unless there is a total failure of consideration and the minor has received no benefit
whatsoever.16

13
Supra note 6 p. 305
14
[1937] 2 KB 498
15
Supra note 6 p. 306
16
Ibid.
 6

In Steinberg v Scala (Leeds) Ltd17 The claimant, Miss Steinberg, purchased shares in the
defendant company and paid certain sums of money on application, on allotment and on call.
Being unable to meet future calls, she repudiated the contract whilst still a minor and
claimed:

(a) Rectification of the Register of members to remove her name therefrom, thus relieving her
from liability on future calls; and

(b) The recovery of the money already paid.

The company agreed to rectify the register but was not prepared to return the money paid.

Held: the claim under (b) failed because there had not been a total failure of consideration.
The shares had some value and gave some rights, even though the claimant had not received
any dividends and the shares had always stood at a discount on the market.

In Davies v Beynon-Harris18 a minor was allowed to avoid a lease of a flat without liability
for future rent or damages but was not allowed to recover rent paid. However, in Goode v
Harrison19 a partner who was a minor took no steps to avoid the partnership contract while a
minor or afterwards. He was held liable for the debts of the firm incurred after he came of
age.

Void contracts which a minor may ratify at majority

Under the Infants’ Relief Act 1874, the following contracts were stated to be absolutely void:
Contracts for the repayment of loans; Contracts for goods other than necessaries and;
Accounts stated, that is, admissions of money owed.

In addition, no action could be brought on the basis of the ratification, made after the
attainment of full age, of an otherwise void contract. In England, the main effect of the
Minors’ Contracts Act 1987 was that the contracts set out in the Infants’ Relief Act 1874
were no longer to be considered as absolutely void. As a consequence, unenforceable, as well
as voidable, contracts may be ratified upon the minor attaining the age of majority. 20

17
[1923] 2 Ch 452
18
(1931) 47 TLR 424
19
(1821) 5 B & Ald 147
20
Supra note 11 p. 138
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In Williams v Moor21 the defendant who, at the material time was an infant, and therefore
without legal capacity to contract, entered into contracts for work and materials and goods
were supplied and delivered to him. When the defendant reached the age of majority, he
confirmed the contracts. This action was brought by the plaintiff to recover monies due upon
those contracts. The defendant argued that as the contracts were entered into when the
defendant was an infant incapable of contracting, the contracts were void and therefore
incapable of ratification.

Held: that on principle, an infant, upon reaching the age of majority, may ratify, and thereby
make himself liable on contracts made during infancy.

From the principles discussed above, it can be seen that the contract between Hakainde
Hamududu and Banda Tasa was valid as it was for Banda Tasa’s benefit in particular, as a
contract of apprenticeship, training or education. Hakainde Hamududu is entailed to recover
reasonable damages arising from Banda Tasa’s failure to honour the contract between them.

Nevers Chipimo can only enforce his contract with Banda Tasa if he can show that the goods
delivered to Banda Tasa were necessaries. For the first item, the laptop computer valued at
K18,000, Chipimo can demonstrate that taking in to consideration the type of course Banda
Tasa was doing (computer programming) a laptop computer was a necessary, that is, it was to
Banda Tasa’s actual requirement at the time of delivery. However, assuming the court
accepted that the laptop computer was a necessary, Chipimo cannot necessarily recover the
actual contract price but a reasonable one at the court’s discretion to award.

For the gold wrist watch valued at K15, 000 there is no way Chipimo can show that it was a
necessary to Banda Tasa. The position could perhaps have been different if Banda Tasa was
a wealthy minor. The possibility of him being wealthy is easily dismissed as Banda Tasa on
the facts, was unable to pay the tuition fees charged by the college and had to be or agreed to
be awarded a waiver on tuition fees. It follows that there is no way extravagant or goods of
mere luxury can ever be necessaries to a minor of humble station in life.

Where a minor has obtained property under a contract which is not enforceable against him,
the adult party who can neither sue for the price nor get the property back may suffer an

21
(1843) 11 M & W 256; 152 ER 798
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injustice. Even where the minor has lied about his age, no action in deceit will lie because
this would, in effect, enable the contract to be enforced against him and for the same reason it
is improbable that the minor would be estopped from asserting his true age. 22

In England, the Minors’ Contracts Act 1987, section 3, now affords a limited measure of
redress. Where a contract made after the commencement of the Act is unenforceable against a
defendant because he was a minor when it was made: “...the court may, if it is just and
equitable to do so, require the defendant to transfer to the plaintiff any property acquired by
the defendant under the contract or any property representing it”. This may assist the plaintiff
where the property is identifiable.23 However, as pointed above, the aforementioned English
statute does not apply to Zambia. There is need for local legislation.

Nevertheless, as the contract for the gold wrist watch between Chipimo and Tasa is void,
there is in effect no contract. Chipimo may recover the watch as title never passed to Tasa.
Keenan states that: “Thus, if Ann, a minor, buys a gold necklace and does not pay for it, the
seller can recover the necklace from Ann. If Ann exchanges the necklace say for a gold
bangle, the seller can recover the gold bangle from Ann.”24

Conclusion

A minor is capable of making valid contracts for necessaries and is also bound by any
beneficial contract of service into which he enters (that is, any contract of employment or
training that is advantageous to him taken as a whole). Other forms of contracts entered into
with a minor are voidable in that a minor may repudiate them either before he comes of age
or within a reasonable time thereafter. If he fails to repudiate, he becomes fully bound.

The contract between Hakainde Hamududu and Banda Tasa was valid as it was for Banda
Tasa’s benefit in particular, as a contract of apprenticeship, training or education. Hakainde
Hamududu is entailed to recover reasonable damages arising from Banda Tasa’s failure to
honour the contract between them.

Nevers Chipimo can only enforce his contract with Banda Tasa if he can show that the goods
delivered to Banda Tasa were necessaries. For the first item, the laptop computer valued at
K18,000, Chipimo can demonstrate that considering the type of course Banda Tasa was
22
Supra note 1 p. 735
23
Ibid. p. 736
24
Supra note 6 p. 306-7
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doing (computer programming) a laptop computer was a necessary, that is, it was to Banda
Tasa’s actual requirement at the time of delivery. However, assuming the court accepted that
the laptop computer was a necessary, Chipimo cannot necessarily recover the actual contract
price but a reasonable one at the court’s discretion to award. The contract for the gold wrist
watch valued at K15, 000 is void as it was not a necessary for Banda Tasa. At the courts
discretion, Nevers Chipimo may recover the watch if the court considers such recovery just
and equitable.
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Bibliography

Books:

Brownsword, R. (12th Ed.). (2009). Smith and Thomas A Casebook on Contract. London:

Sweet & Maxwell.

Judge, S. (2nd Ed.). (1999). Business Law. London: Macmillan Press Limited.

Keenan, D. (Ed.). (15th Ed.). (2007). Smith and Keenan’s English Law. Harlow:

Longman.

Kelly, D., Holmes, A., & Hayward, R. (4th Ed.). (2002). Business Law. London: Cavendish

Publishing Limited.

Legislation:

Betting and Loans (Infants) Act, 1892 (English)

English Law (Extent of Application) Act, Chapter 11 of the Laws of Zambia

Family Law Reform Act, 1969 (English)

Infants Relief Act, 1874 (English)

Minors’ Contracts Act, 1987 (English)

Sale of Goods Act, 1893 (English)

Cases:

Davies v Beynon-Harris (1931) 47 TLR 424

De Francesco v Barnum (1890) 45 Ch D 430

Doyle v White City Stadium [1935] 1 KB 110

Goode v Harrison (1821) 5 B & Ald 147

Mercantile Union Guarantee Corporation v Ball [1937] 2 KB 498

Nash v Inman [1908] 2KB 1

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Roberts v Gray [1913] 1 KB 520

Steinberg v Scala (Leeds) Ltd [1923] 2 Ch 452

Williams v Moor (1843) 11 M & W 256; 152 ER 798