‘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.[1]
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.[2] 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.[3] To this head may be referred a minor's liability for necessaries, or for money borrowed and expended on necessaries.[4] The liability is, indeed, rather quasi-contractual than contractual,[5] and rests upon the principle stated by Pomponius: ‘Nam hoc natura aequum est neminem cum alterius detrimento fieri locupletiorem.’[6]
(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.[7] A female minor is in this regard in the same case as a male.[8]
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.[9] In other words, a contract entered into by a minor, unassisted, may be ratified either during his minority or after its determination.[10] Voet adds that if a minor seeks to enforce a contract made by him without his tutor's- ↑ For Ceylon law herein see Pereira, The Laws of Ceylon, pp. 185 ff.
- ↑ Gr. 3. 1. 26.
- ↑ 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.
- ↑ Van Leeuwen, ubi sup.
- ↑ Gr. 3. 30. 3.
- ↑ Dig. 12. 6. 14, and 50. 17. 206.
- ↑ Cens. For. 1. 4. 43. 5; Gericke v. Keyter (1879) Buch. 147; Riesle v. McMullin (1907) 10 H. C. G. 381.
- ↑ Voet, 4. 4. 51.
- ↑ Gr. 3. 6. 9; Voet, 26. 8. 3.
- ↑ Voet, 26. 8. 4 (ad fin.), and 4. 4. 44. But see Riesle v. McMullin, ubi sup.
