The consequences of contracts concluded by unassisted minors : a comparative evaluation

[摘要] ENGLISH ABSTRACT: It is a general principle of the law of South Africa that an unassisted contract of aminor is unenforceable against the minor. Although it binds the other party, the minoris not bound. The minor will only be bound if the contract is enforced by his guardian,or if the contract is ratified by the child after attaining majority. This implies that theother party is in a rather unfortunate position, since the effectiveness of the contractwill remain uncertain until the guardian of the minor decides to enforce or repudiatethe contract, or until the minor ratifies it after attaining majority. The other party maynot resile from the contract during this interim period.Should it be established that the contract has failed, the question arises to whatextent the parties are obliged to return performances made in purported fulfilment ofthe contract.In terms of the law of South Africa, the prevailing view is that these claims are basedon unjustified enrichment. However, the extent of these claims differs. In principle,both parties' liability will be limited to the amount remaining in its estate, according tothe defence of loss of enrichment. But the application of the defence is subject to anexception that does not apply equally to the parties. Had the other party known orshould the other party have known that the enrichment was sine causa, yetcontinued to part with it, he will be held liable for the full enrichment. However, thisexception does not apply to the enrichment liability of minors. In other words,whether the minor knew or should have known that the enrichment was sine causa,he would still be allowed to raise the defence of loss of enrichment. Furthermore, therules applicable to minors' enrichment liability applies to all minors, and no scope isleft to consider the specific circumstances of each minor.It is accepted that there are two competing principles relating to minors' unassistedcontracts. On the one hand, the law must protect the minor from his immaturity andlack of experience. On the other hand, the law must protect the interests of the otherparty. It will be seen throughout this study that the determination of how to balancethese competing principles is not an easy task.The key aim of this thesis is to investigate the principles governing the unwinding ofunassisted minors' contracts in South Africa. A comparison will be made with the principles applied in other legal systems, in order to identify similarities anddifferences in the approaches and, to establish what underlies the differences in thevarious approaches.Germany, England and Scotland have been chosen for comparison for variousreasons. First, they share some historical roots, and they represent three major legaltraditions, namely the civil law, common law and mixed legal systems, of whichSouth Africa also forms part. Secondly, both England and Scotland haveexperienced recent legislative reform in this regard, which implies that theirrespective legal systems should be in line with modern tendencies, andconsequently they may provide a valuable framework for possible reform in SouthAfrica. In Germany, although mainly regulated by rather older legislation, there havebeen interesting developments in the determination of consequences of failedcontracts.Hellwege has argued that the unwinding of all contracts should be treated similarly,regardless of the unwinding factor. He has also suggested that in order to preventthe accumulation of risk on one party, and to ensure that the risk is placed on theperson who is in control of the object, the defence of loss of enrichment should notbe available to any party. His reasoning and suggestions is dealt with in more detailin this thesis.This study argues that the current strict approach applied under South African lawregarding minors' unassisted contracts needs to be re-considered. The currentapproach is dated and is not in line with modern tendencies and legislation. Noproper consideration is given to minors' development into adulthood or personalcircumstances of the parties. It is submitted that in the process of re-consideration,some form of acknowledgement must be given to minors' development towardsmature adults. It is submitted that this would be possible by introducing a moreflexible approach to regulate the enforceability and unwinding of minors' unassistedcontracts.

[发布机构] Stellenbosch University