reason it seems to have been thought not immaterial that a freehold estate (for the life of the lessor or twenty-one years) had passed by the original lease. There is good English authority for the proposition that if a lease made by an infant is beneficial to him he cannot avoid it at all (a). It appears to be agreed that the sale, purchase (b), or Sale, &c., exchange (c) of land by an infant is both as to the contract and as to the conveyance only voidable at his option. of land. Again, there is no doubt that an infant may be a partner Partneror shareholder (though in the latter case the company may shareholdship and refuse to accept him) (d); and though he cannot be made ing. liable for partnership debts during his infancy, he is bound by the partnership accounts as between himself and his partners and cannot claim to share profits without contributing to losses. And if on coming of age he does not expressly disaffirm the partnership he is considered to affirm it, or at any rate to hold himself out as a partner, and is thereby liable for the debts of the firm contracted since his majority (e). The liability of an infant shareholder who does not repudiate his shares to pay calls on them rests, as far as existing authorities go, on a somewhat different form of the same principle (of which afterwards). As to contribution in the winding up of a company, Mr. Justice Lindley (2. 1356) "is not aware of any case in which an infant has been put on the list of contributories. Upon principle, however, there does not appear to be any reason why he should not, if it be for his benefit; and this, if there are surplus assets, might be the case." Otherwise he cannot be deprived of his right to repudiate the shares, unless perhaps by fraud; but in any case if he " does not repudiate (a) Maddon v. White, 2 T. R. 159. (b) Co. Lit. 2 b, Bac. Ab. Infancy I. 3 (4, 360). (e) Co. Lit. 51 b. (d) But the company cannot dispute the validity of a transfer to an infant after the infant has trans- (e) Lindley, 1. 80-83; Goode v. Marriage. Promises to marry and mar riage set tlements. his shares, either while he is an infant or within a reasonable time after he attains twenty-one, he will be a contributory," and still more so if after that time he does anything showing an election to keep the shares. On the whole it is clear on the authorities (notwithstanding a few expressions to the contrary), that both the transfer of shares to an infant and the obligations incident to his holding the shares are not void but only voidable (a). Marriage is on a different footing from ordinary contracts (b), and it is hardly needful to say in this place that the possibility of a minor contracting a valid marriage has never been doubted in any of our Courts. Even if either or both of the parties be under the age of consent (fourteen for the man, twelve for the woman) the marriage is not absolutely void, but remains good if when they are both of the age of consent they agree to it (c). But the Marriage Act, 4 Geo. 4, c. 76 (ss. 8, 22), makes it very difficult, though not impossible, for a minor to contract a valid marriage without the consent of parents or guardians (d). As to promises to marry and marriage settlements, it has long been familiar law that just as in the case of his other voidable contracts an infant may sue for a breach of promise of marriage, though not liable to be sued (e). An infant's marriage settlement is not binding on the infant unless made under the statute (see post, p. 73), and the (a) Lumsden's ca. 4 Ch. 31; Gooch's ca. 8 Ch. 266: cp. p. 63, infra. (b) Continental writers have wasted much ingenuity in debating with which class of contracts it should be reckoned. Sav. Syst. § 141 (3. 317); Ortolan on Inst. 2. 10. (c) Bacon Abr. 4. 336. (d) In most Continental countries the earliest age of legal marriage is fixed in France it is eighteen for the man, fifteen for the woman, and consent of parents or lineal ancestors : is required up to the ages of twentyfive and twenty-one respectively. (Code Civ. 144, sqq.) But this consent may be dispensed with in various ways by matter subsequent or lapse of time: see art. 182, 183, 185. The marriage law of other states (except some where the canon law still prevails) appears to differ little on the average from the law of France in this particular. (e) Bacon, Abr. Infancy and Age, I. 4 (4. 370). Per Lord Ellenborough, Warwick v. Bruce, 2 M. & S. 205. Court of Chancery has no power to make it binding in the case of a ward (a). A settlement of a female infant's general personal property, the intended husband being of full age and a party, can indeed be enforced, but as the contract not of the wife but of the husband; the wife's personal property passing to him by the marriage, he is bound to deal with it according to his contract (b). instru However, in any case the settlement is not void but only voidable; it may be confirmed by the subsequent conduct of the party when of full age and sui iuris (c). Again an Negotiable infant's contract on a bill of exchange or promissory note ments. was once supposed to be wholly void, but is now treated Accounts as only voidable (d). The same holds of an account stated; opinion of and here the decisive case is a strong authority in favour the Court of the general contention that a contract is not in any case chequer on absolutely void by reason of the party's infancy. Court said: The "The argument on behalf of the defendant was that an account stated by an infant is not merely voidable but actually void, so that no subsequent ratification can make it of any avail. But we can see no sound or reasonable distinction in this respect between the liability of an infant on an account stated and his liability for goods sold and delivered or on any other contract . . . The general doctrine is that a party may after he attains the age of twenty-one years ratify and so make himself liable on contracts made during infancy. We think that on principle unopposed by authority this may be done on a contract arising on an account stated as well as on any other contract" (e). ... stated, and of Ex the general question. This may be claimed, we think, as a very strong modern judicial opinion, and so far as we know it remains uncontradicted by any equal authority of later date. Nor is Text-writhe sanction of approved text-writers wanting for the same American view. Mr. Leake takes no notice whatever of the current authori (a) Field v. Moore, 7 D. M. G. 691, 710. (b) Davidson Conv. 3, pt. 2. 728. undisputed in Harris v. Wall, 1 Ex, (e) Williams v. Moor, 11 M. & W. ters and ties. Conclu sion: no holding any con tracts of infants void at C. L. doctrine of the books; and a learned American writer says reason for it has been declared in American Courts to be "unsatisfactory, liable to many exceptions, and difficult of safe application," and himself takes it for the better opinion that contracts made by infants are not in any case on that account absolutely void (a). Sir W. Anson (b) fully approves the present writer's argument. On the whole, then, we have seen that in several important classes of cases (including some that were formerly supposed exceptional) an infant's contract is certainly not void: and we have also seen that there is not any clear authority for holding that in any case it is in fact void. And it is perhaps not necessary to seek or offer any further justification for refusing to admit an ill-defined and inconvenient class of exceptions, of which no positive instance can be found. Infant There is one exception to the rule that an infant may cannot enforce his voidable contracts against the other party have specific perfor- during his infancy, or rather there is one way in which he cannot enforce them. Specific performance is not allowed at the suit of an infant, because the remedy is not mutual, the infant not being bound (c). mance. At what time he An infant may avoid his voidable contracts (with pracmay avoid tically few or no exceptions) either before or within a reasonable time after coming of age: the rule is that "matters in fait [i.e., not of record] he shall avoid either within age or at full age," but matters of record only his con tracts. (a) Parsons on Contracts (1st ed.), 244, and see note ib. It appears that the misleading confusion of void and voidable occurs in American no less than in English reports: op. cit. p. 275, note. It should be mentioned, however, that a more recent author (Hilliard on Contracts, 2, 129) adheres to the old division of them into three classes as binding, void, and voidable, and cites a case decided in Maine where it is very clearly expressed. The learned judge, however, allows only contracts for necessaries to be binding, which on the English authorities is certainly too narrow, and swells the class of void contracts by instances of acts that are not properly contracts at all. Mr. W. W. Story (On Contracts, § 101, sqq.) also adopts the threefold division. (b) Principles of the English Law of Contract, p. 98. (c) Flight v. Bolland, 4 Russ. 298. within age (Co. Lit. 380b) (a). However, where the nature of the case admits of it, an infant's affirmation or repudiation of his contract while he is still a minor is treated as only provisional; he cannot deprive himself of the right to elect at full age, and only then can his election be conclusively determined (b). There is no express authority for the saving words we have introduced into this proposition, but they are obviously required; in the case of an infant shareholder, for instance, the unqualified application of it might make it impossible for anybody to deal with the shares until he came of age. Indeed there is no lack of authority to show that here as in other cases, so far as the interests of third persons are concerned, and to some extent also as regards acts done by the parties themselves on the faith of the contract, voidable means not invalid until ratified, but valid until rescinded (c). If an Money paid under infant pays a sum of money under a contract, in considera avoided tion of which the contract is wholly or partly performed contract, by the other party, he can acquire no right to recover the recover money back by rescinding the contract when he comes of age. Such is the case of a premium paid for a lease (d), or of the price of goods (not being necessaries) sold and delivered to an infant and paid for by him: and so if an infant enters into a partnership and pays a premium, he cannot either before or after his full age recover it back, nor therefore prove for it in the bankruptcy of his partners (e). when not able. We must now consider the effect of the Act of 1874 (37 Infants & 38 Vict. c. 62), which enacts as follows: (a) See per Parke, B., Newry & Enniskillen Ry. Co. v. Coombe, 3 Ex. 565, 18 L. J. Ex. 325; per Cur. L. & N. W. R. v. M'Michael, 5 Ex. 114, 20 L. J. Ex. 97. As to an infant being bound when he comes of age by an acknowledgment made in a Court of Record, see Y. B. 20 & 21 Ed. 1, in the series of Chronicles and Memorials published under the direction of the Master of the Rolls, p. 320. (b) L. & N. W. R. v. M'Michael, supra; Slator v. Trimble, 14 Ir. C. L. 342. (c) Per Lord Colonsay, L. R. 2 (d) Holmes v. Blogg, 8 Taunt. 35, Relief Act. 1874. |