42
The Law of Persons
prevent a minor from acquiring ownership,[1] but he cannot alienate or charge his property[2] without his parent's or tutor's authority;[3] which, as we have seen, in the case of the alienation or hypothecation of immovables is not sufficient without an order of Court.[4]
Minors under the age of puberty are incompetent to make[5] or to witness a will.[6]
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- ↑ Dig. 41. 1. 11.
- ↑ 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.).
- ↑ 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.
- ↑ Voet, 26. 8. 5; 27. 9. 1 and 4.
- ↑ Gr. 1. 6. 3; V. d. L. 1. 4. 1.
- ↑ 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.’
