Page:An introduction to Roman-Dutch law.djvu/83

From Wikisource
Jump to navigation Jump to search
This page has been proofread, but needs to be validated.
Minority
43
appears that they have suffered by reason of the weakness of youth.[1] 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).[2] The benefit of restitution accorded to a minor devolves on death,[3] but is not generally available to persons who have bound themselves as sureties for a minor, therein differing from other cases of restitution.[4] Restitution is refused when a minor has fraudulently misrepresented his age.[5] It is waived by ratification after full age, which may be express or implied.[6] 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.[7] A minor cannot obtain restitution against marriage on the ground of minority alone,[8] nor against his liability for crime or serious delicts.[9] By the Civil Law a minor[10] might exclude the benefit of restitution by oath. This was not allowed in the United Provinces.[11]
  1. 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.
  2. Voet, 4. 4. 14 ff.
  3. Voet, 4. 4. 38.
  4. Cens. For. 1. 4. 43. 10; Voet, 4. 4. 39.
  5. 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.
  6. Voet, 4. 4. 44; Van der Byl v. Solomon (1877) Buch. 25.
  7. 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.
  8. Voet, 4. 4. 45; Haupt v. Haupt (1897) 14 S. C. 39.
  9. Voet, ibid.
  10. Above puberty. Voet, 4. 4. 46.
  11. 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