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majority, the Orphan Chamber might for good cause prolong the period of guardianship beyond its usual legal term.^[1]

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.’^[2]

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'^[3] or guardians'^[4] consent. ‘Municipal law,’ says Grotius,^[5] ‘considers all obligations incurred by minors^[6] 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.^[7] The phrase

ground of minority. Voet, however (4. 9. 9), whom he calls in aid, expresses the opposite view.

1. Voet, ubi sup.; V. d. K. Th. 160.
2. Van Leeuwen, 4. 2. 2 (Kotzé's Transl., vol. ii, p. 11); Voet, 26. 8. 9.
3. V. d. L. 1. 4. 1.
4. Gr. 1. 8. 5.
5. Gr. 3. 1. 26.
6. 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.
7. Cens. For. 1. 4. 43. 2. For the Senatus-Consultum Macedonianum forbidding loans of money to filii familias see below, p. 263, n. 7.