An Introduction to Roman-Dutch Law/Book I/Chapter III

by Robert Warden Lee

Chapter III

Minority

Minority. A minor by Roman-Dutch Law is a person of either sex who has not completed the twenty-fifth year.^[1] For this the twenty-first year has been substituted by statute in all the Roman-Dutch Colonies.^[2] As to the precise moment at which minority ends Voet makes the following distinction. The last day of minority is regarded as completed at the moment of its inception, where it is to the minor's advantage that it should be so considered;^[3] but where the advantage lies the other way, so as, e.g., to prolong the benefit of restitutio in integrum, then, majority is not deemed to be attained until the very minute arrives at which birth took place.^[4]

Majority may be accelerated by:
(a) Venia aetatis; Majority may be accelerated by: (1) venia aetatis; (2) marriage. Venia aetatis, Grotius says, is obtained when the minor is for special reasons declared of age, before attaining the prescribed years of majority, either by the Sovereign or by the Court.^[5] Voet,^[6] however, and Van der Linden^[7] give the prerogative of conceding it to the Sovereign alone. After some difference of opinion the law has been settled in this sense by the Courts of South Africa.^[8] The effect of venia aetatis (which is not given to males under twenty or to females under eighteen years of age)^[9] is to put an end to all the incapacities and benefits of minority except as regards the alienation or hypothecation of immovables, which, unless expressly granted along with venia aetatis, can only be effected after leave obtained from the Court. In this respect alone, persons who have obtained venia aetatis remain on the same footing as other minors.^[10]

(b) Marriage. The effect of marriage is different. In the case of a male this puts an end to minority absolutely;^[11] accordingly the latter does not revive in the event of the death of the wife while the husband is within the ordinary limits of minority.^[12] But in this case, as also in the case of natural majority, the Orphan Chamber might for good cause prolong the period of guardianship beyond its usual legal term.^[13]

The legal status and capacity of a minor. The next matter for consideration is the legal status and capacity of a minor. The subject is inadequately treated in the text-books, but the following rules may be extracted from them.

1. If the child is so young that he does not know what he is about, he is absolutely incapable of contracting at all with or without assistance, for, as Van Leeuwen says: ‘All obligations must arise out of a free and full exercise of the will. It cannot therefore take place where there is a hindrance to the exercise of the will as in the case of lunatics and madmen and young children, who are bound neither by a promise nor acceptance.’^[14]

2. If the child is old enough to understand the nature of the transaction, he has intellectus but is still wanting in judicium, and therefore cannot, with some exceptions, contract a valid obligation without his parents'^[15] or guardians'^[16] consent. ‘Municipal law,’ says Grotius,^[17] ‘considers all obligations incurred by minors^[18] as invalid, unless incurred through delict or in so far as they have been benefited.’

Such obligations are said to be ipso jure void, and therefore minors are ipso jure secure from any claims in respect of them without the need of invoking the extraordinary remedy of restitutio in integrum.^[19] The phrase ‘ipso jure void’ must not, however, be taken too literally, for, as will be seen, such obligations are not so much void as voidable at the minor's option.^[20]

Exceptions to the rule of non-liability:
(a) When the minor has been benefited; 3. The first exception to the rule of non-liability is mentioned by Grotius in the passage above cited, viz. so far as the minor has been benefited.^[21] This means that when a contract has been executed in a minor's favour he cannot evade the corresponding liability, or set up his minority as a defence, provided that in view of all the circumstances of the case the contract was for his benefit.^[22] To this head may be referred a minor's liability for necessaries, or for money borrowed and expended on necessaries.^[23] The liability is, indeed, rather quasi-contractual than contractual,^[24] and rests upon the principle stated by Pomponius: ‘Nam hoc natura aequum est neminem cum alterius detrimento fieri locupletiorem.’^[25]

(b) Trade and professional contracts; 4. The next exception is when a minor carries on a profession, trade, or business. He may contract in relation thereto, and cannot obtain relief by restitutio in integrum in respect of consequent loss or damage.^[26] A female minor is in this regard in the same case as a male.^[27]

Are the contracts of an unassisted minor void or merely voidable? 5. It has been said above that the phrase ‘ipso jure void’ must not be taken too literally. This appears from the fact that the other party to the contract is bound, if the minor through his tutor, or the late minor after majority, on his own motion takes steps to enforce the contract.^[28] In other words, a contract entered into by a minor, unassisted, may be ratified either during his minority or after its determination.^[29] Voet adds that if a minor seeks to enforce a contract made by him without his tutor's authority, he may do so only on condition that he himself performs his part.^[30] He further points out that an unassisted contract of a minor always creates a natural obligation, and therefore supports the collateral undertaking of a surety, provided that the minor be upwards of seven years of age. But, contrary to the rule usually applicable to such obligations, the natural obligation of a minor does not preclude the condictio indebiti. Accordingly, if the minor has made a payment in pursuance of an unauthorized contract he can get the money back. But, if he ratifies after full age, his obligation is no longer merely natural, but civil.^[31]

Unilateral contracts. 6. A contract entered upon by a minor is good without the tutor's consent,^[32] if the advantage is all on his side, and there is no corresponding disadvantage or burden. Other contracts, entered into with the tutor's consent, bind the minor^[33] unless and until he obtains a decree of restitutio in integrum.^[34] Further, a father and guardian, as we have seen or shall see hereafter, may in due course of administration contract in the name of the minor and bind him by such contract, subject however to the same relief.^[35]

Liability for delicts and crimes. 7. A minor above the age of seven years is liable for his delicts and of course for his crimes.^[36] With regard to delicts Voet says that if there is wrongful intention the minor is always liable. If, on the other hand, he has done injury through slight or very slight fault (levi vel levissima culpa), without wrongful purpose, he should be excused, or at least relieved from punishment by restitutio in integrum.^[37]

Property. 8. In the sphere of property-law there is nothing to prevent a minor from acquiring ownership,^[38] but he cannot alienate or charge his property^[39] without his parent's or tutor's authority;^[40] which, as we have seen, in the case of the alienation or hypothecation of immovables is not sufficient without an order of Court.^[41]

Minors under the age of puberty are incompetent to make^[42] or to witness a will.^[43]

Restitutio in integrum. 9. Restitutio in integrum, which has been already mentioned, is an extraordinary remedy, by which the Court relieves a person from the consequences of a transaction into which he has entered and so far as possible restores the status quo ante. It is granted to minors when it appears that they have suffered by reason of the weakness of youth.^[44] This remedy is given in respect not only of contracts, but also of alienation of property by donation or otherwise; of compromises; and even of judicial proceedings (e.g. when he has failed to put in his pleadings in time).^[45] The benefit of restitution accorded to a minor devolves on death,^[46] but is not generally available to persons who have bound themselves as sureties for a minor, therein differing from other cases of restitution.^[47] Restitution is refused when a minor has fraudulently misrepresented his age.^[48] It is waived by ratification after full age, which may be express or implied.^[49] It seems that acquiescence with knowledge or means of knowledge of the true circumstances for four years after full age amounts in law to ratification and excludes restitution, which in other cases is only barred after thirty years.^[50] A minor cannot obtain restitution against marriage on the ground of minority alone,^[51] nor against his liability for crime or serious delicts.^[52] By the Civil Law a minor^[53] might exclude the benefit of restitution by oath. This was not allowed in the United Provinces.^[54]

1. Gr. 1. 7. 3; Van Leeuwen, 1. 12. 3; Voet, 4. 4. 1.
2. Cape, Ord. 62, 1829, sec. 1; Natal, Ord. No. 4 of 1846, sec. 1; Transvaal, Volksraad Resolution of December, 1853, Art. 123; O. F. S. Law Book of 1901, chap. 89, sec. 14; Ceylon, Ord. No. 7 of 1865, sec. 1; British Guiana, Ord. No. 1 of 1832.
3. Voet, 4. 4. 1.
4. Gr. 3. 48. 9; Voet, ubi sup. and 44. 3. 1; Cens. For. 1. 4. 43. 11, cf. Dig. 4. 4. 3. 3. In English law full age is reached at the beginning of the day before the twenty-first birthday (1 Blackst. Comm. 463, and Christian's note). Is the rule the same in R.-D. L.? See Dig. 50. 16. 134 and 28. 1. 5, with Gothofredus' note. As to leap year see Voet, ubi sup.
5. Gr. 1. 10. 3. The language of Grotius limits this privilege to an orphan (wees). The institution of venia aetatis is taken from the Civil Law, Cod. 2, tit. 44 (45).
6. Voet, 4. 4. 4.
7. V. d. L. 1. 4. 3. See also V. d. K. Th. 161.
8. See cases in Nathan, Common Law of South Africa, vol. i, p. 116 (2nd ed. p. 126), and Bisset and Smith, Dig. S. A. Case Law, vol. ii, col. 1837. Maasdorp (vol. i, p. 237) says that venia aetatis is obsolete in the Cape Province. For a form of venia aetatis still in use in Ceylon see Appendix A to this Book (infra, p. 107).
9. Cod. 2. 44 (45). 2; V. d. L., ubi sup.; O. F. S. Law Book of 1901, chap. xcii, sec. 7. But see Van Leeuwen, 1. 16. 11.
10. Voet, 4. 4. 5; minoribus caeteris hac in parte manentes exaequati.
11. Voet, 4. 4. 6.
12. Schorer ad Gr. 1. 6. 4; V. d. K. Th. 879; V. d. L. 1. 4. 3. The position of a female widow not yet twenty-one years old is somewhat anomalous. She has been a minor during marriage jure maritali. The death of the husband leaves her still under age. But, on the other hand, she does not revert to the paternal power or require a guardian. V. d. K. says (Th. 879) that she cannot be relieved from her contracts on the ground of minority. Voet, however (4. 9. 9), whom he calls in aid, expresses the opposite view.
13. Voet, ubi sup.; V. d. K. Th. 160.
14. Van Leeuwen, 4. 2. 2 (Kotzé's Transl., vol. ii, p. 11); Voet, 26. 8. 9.
15. V. d. L. 1. 4. 1.
16. Gr. 1. 8. 5.
17. Gr. 3. 1. 26.
18. I. e. unassisted. V. d. K. Th. 128 and 474; Dig. 4. 4. 16 pr. No distinction can reasonably be drawn between a minor whose parents are alive and one whose parents are dead. As regards contractual capacity, they are in exactly the same position. V. d. K. Th. 474; Dictat. ad Gr. 3. 1. 26; Holl. Cons., vol. vi, pt. 2, no. 30. Van der Keessel rightly dissents from the view of Groenewegen (de leg. abr. ad Cod. 4. 26. 2) and Voet (14. 5. 4) that minors above the age of puberty whose parents are alive are bound by their contracts until relieved by restitutio in integrum.
19. Cens. For. 1. 4. 43. 2. For the Senatus-Consultum Macedonianum forbidding loans of money to filii familias see below, p. 263, n. 7.
20. For Ceylon law herein see Pereira, The Laws of Ceylon, pp. 185 ff.
21. Gr. 3. 1. 26.
22. Gr. 1. 8. 5; 3. 6. 9; 3. 30. 3; Van Leeuwen, 1. 16. 8; Voet, 26. 8. 2; Nel v. Divine, Hall & Co. (1890) 8 S. C. 16.
23. Van Leeuwen, ubi sup.
24. Gr. 3. 30. 3.
25. Dig. 12. 6. 14, and 50. 17. 206.
26. Cens. For. 1. 4. 43. 5; Gericke v. Keyter (1879) Buch. 147; Riesle v. McMullin (1907) 10 H. C. G. 381.
27. Voet, 4. 4. 51.
28. Gr. 3. 6. 9; Voet, 26. 8. 3.
29. Voet, 26. 8. 4 (ad fin.), and 4. 4. 44. But see Riesle v. McMullin, ubi sup.
30. Voet, 26. 8. 3; V. d. K. Th. 529. But, says Van der Keessel, ‘a minor, who has become a party to a bilateral contract which has been executed, may recover property alienated by him in terms of the contract, but on his side is only bound quatenus locupletior factus est.’
31. Voet, 26. 8. 4.
32. Gr. 1. 8. 5; Voet, 26. 8. 2.
33. Voet, 26. 8. 3.
34. Gr. 3. 48. 10; Voet, 4. 4. 52.
35. Gr. ubi sup. and 1. 8. 8; V. d. K. Th. 133.
36. Gr. 1. 4. 1; 3. 1. 26; 3. 48. 11.
37. Voet, 4. 4. 45; but not, I think, in the modern law.
38. Dig. 41. 1. 11.
39. Gr. 1. 8. 5; 2. 48. 4; Van Leeuwen, 2. 7. 8; nor make a gift mortis causa (Gr. 3. 2. 23—from whom Schorer, ad loc., dissents); nor discharge a debt by release (Gr. 3. 41. 8); or by novation (Voet, 46. 2. 8); nor make a valid payment of a debt (Gr. 3. 39. 11); i.e. he may recover the money if still intact; if this is impossible the payment holds good (Ibid.).
40. It is not clear that he can do so even with such authority. By the earlier Civil Law he could (Inst. 2. 8. 2; Dig. 26. 8. 9. 1 and 41. 1. 11); but the restrictions imposed by the Oratio Severi and later enactments on alienation by the tutor in the course of administration applied equally to alienation by the pupil with the tutor's authority. Property included within the scope of these laws was inalienable either by tutor or by pupil without an order of Court. Vinnius ad Inst. 2. 8. 2. ad init.; Girard, p. 216. After Constantine the statutory restriction extended to all immovables and to valuable movables. Cod. 5. 37. 22. Grotius (1. 8. 5) says, without qualification, that a minor cannot alienate; and Van der Keessel (Th. 129) requires the consent of the pupillary magistrates for the alienation even of movables. But this opinion seems to be inferred from local keuren (Dictat. ad loc), and does not make common law. Gifts by a minor were prohibited by Roman Law (Girard, ubi sup.); but in Roman-Dutch Law donations by minors do not seem to be distinguished from their other contracts. Cens. For. 1. 4. 12. 3; Voet, 39. 5. 7 (ad fin.). Van der Linden (1. 15. 1) says that a minor cannot make a donation to his guardian, but lays down no rule that donations by minors made with the authority of their tutors are otherwise invalid. The conclusion to be drawn from the authorities seems to be that in the modern law a minor is not incapable of alienating his movable property with the consent of his guardian even by way of gift.
41. Voet, 26. 8. 5; 27. 9. 1 and 4.
42. Gr. 1. 6. 3; V. d. L. 1. 4. 1.
43. Gr. 2. 17. 21; V. d. L. 1. 9. 1. By the Roman Law (Inst. 2. 10. 6), and Roman-Dutch Law, the witnesses to a will must be males above the age of puberty. By Cape Law, Act No. 22 of 1876, sec. 2: ‘Every person, except as hereinafter excepted, above the age of fourteen years, who is or may be competent to give evidence in any Court of Law shall be competent and qualified to attest the execution of a will or other instrument.’
44. Gr. 1. 8. 8; 3.48.9–13; Voet, 4. 4. 12 ff. In Ceylon it is a question whether the remedy of restitutio in integrum has not been impliedly abrogated by the provisions of the Civil Procedure Code. Pereira, p. 811.
45. Voet, 4. 4. 14 ff.
46. Voet, 4. 4. 38.
47. Cens. For. 1. 4. 43. 10; Voet, 4. 4. 39.
48. Voet, 4. 4. 43. See Johnston v. Keiser (1879) K. 166; Vogel & Co. v. Greentley (1903) 24 Natal Law Reports, 252; and for Ceylon Wijesooria v. Ibrahimsa (1910) 13 New Law Reports, 195. In this case the Court upheld a sale of immovable property, though made without sanction of the Court.
49. Voet, 4. 4. 44; Van der Byl v. Solomon (1877) Buch. 25.
50. Gr. 1. 8. 8; 3. 48. 13; Cens. For. 1. 4. 42. 5, and 1. 4. 43. 8–9. Voet speaks on this subject with uncertain voice. See Compendium 4. 1. 5, and Comment. ad Pandect. 4. 1. 16 and 20. The prescription itself may in turn be annulled by restitution. Schorer, ad Gr. 3. 48. 13. Time does not begin to run after full age unless the late minor knew or might have known of the laesio which entitles him to relief. Cens. For. loc. cit.
51. Voet, 4. 4. 45; Haupt v. Haupt (1897) 14 S. C. 39.
52. Voet, ibid.
53. Above puberty. Voet, 4. 4. 46.
54. Cens. For. 1. 4. 43. 13–15; Groen. de leg. abr. ad Cod. 2. 27. 1. The enactment in the Code is attributed to the Emperor Alexander, and there is an authentica of the Emperor Frederick I (2 Lib. Feud. 53. 3) in the same sense. The commentators hesitate to treat such an oath as devoid of effect. See Groenewegen, loc. cit., and the same author's note ad Gr. 1. 8. 5, and Voet, 4. 4. 46–8. There is a decision in Neostadius (Supr. Cur. Decis., Dec. 80) to the effect that a sale by a minor confirmed by oath holds good. But Van Leeuwen concludes: facilior est responsio nullum jusjurandum ejus efficaciae esse, ut negotium actumve de jure invalidum confirmare queat. In the modern law the question does not arise.