German cial Code on formation of contracts. "8. Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal. "9. In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied." The performance, &c., in s. 8, must of course, like an acceptance in any other manner or form, be communicated to the proposer. Subject to this caution, these sections are believed to represent English law with sufficient exactness to need no further comment. Finally, it may be of some interest to compare with the English and Anglo-Indian law the provisions of the German Commercial Code as to the formation of contracts: "318. When a commercial contract is proposed between parties present at the same time, the acceptance must be immediate; otherwise the proposer is no longer bound to his proposal.† 319. When a proposal is on foot between parties at a distance, the proposer remains bound until the time at which he may fairly expect an answer to reach him, if despatched in ordinary course and in due time. In estimating this time he may assume that his proposal was duly received [surely not if, as in Adams v. Lindsell (a), it was delayed by his own negligence ?] In the event of an acceptance despatched in due time not arriving till after such time as aforesaid, no contract is concluded, if the proposer has given notice of revocation in the meantime, or gives it forthwith (ohne Verzug) on receiving the acceptance." [The clauses marked † seem only to say, in a rather elaborate way, that a proposal is revoked by the lapse of a reasonable time without acceptance; s. 319, however, tacitly involves the important proposition that an answer which never arrives, whether sent by post or otherwise, cannot conclude a contract.] 320. When the revocation of a proposal reaches the other party before or at the same time with the proposal itself, the proposal is deemed null and void (ist für nicht geschehen zu erachten). In like manner the acceptance is deemed null and void if the revocation has been communicated to the proposer before the acceptance, or at the same time with it. (a) 1 B. & Ald. 681, p. 13 sup. 321. Where an agreement has been concluded between parties at a distance, the conclusion of the agreement is to be dated from the time at which the communication of the acceptance was delivered for despatch [sc. out of the acceptor's control?] (in welchem die Erklärung der Annahme Behufs der Absendung abgegeben ist). 322. An acceptance subject to conditions or reservations is equivalent to a refusal coupled with a new proposal." D Infants THE exceptions to the capacity of natural persons to bind themIncapacity selves by contract are infancy, coverture, and insanity. Of these to bind themselves in order. by contract. Ge ment of the law. An infant, i.e., a person less than twenty-one years old (Co. neral state- Lit. 171 b), is not absolutely incapable of binding himself, but is, generally speaking, incapable of absolutely binding himself by contract (a). His acts and contracts are voidable at his option, subject to certain statutory and other exceptions, which are partly definite, partly not definable in terms but capable of reasonable definition in practice, and partly both indefinite and doubtful. The following seems the nearest approach to a statement in general terms that can safely be made. By the common law a contract made by an infant is generally voidable at the infant's option, such option to be exercised either before (b) his attaining his majority or in a reasonable time afterwards. Where the obligation is incident to an interest (or at all events to a beneficial interest) in property, it cannot be avoided while such interest is retained. Exceptions A. Void agreements. By the Infants' Relief Act, 1874, loans of money to infants, contracts for the sale to them of goods other than necessaries, (a) Stated in this form by Hayes, (b) As to this see p. 42. J., 14 Ir. C. L. R., at p. 356. and accounts stated with them are absolutely void and no action can be brought on a ratification of any contract made during infancy. (When the agreement of an infant is such that it cannot be for his benefit, it is said to be absolutely void at common law; but this distinction is exceedingly doubtful, if not altogether exploded by modern authorities.) B. Valid contracts. An infant's contract is valid if it appears to the Court to be beneficial to the infant, and in particular if it is for necessaries. Explanation.-"Necessaries" include all such goods, commodities, and services as are reasonably necessary for the use and benefit of a person in the circumstances and condition of life of the contracting party. Moreover in certain cases infants are enabled to make binding contracts by custom or statute. An infant is not liable for a wrong arising out of or immediately connected with his contract, such as a fraudulent representation at the time of making the contract that he is of full age. But an infant who has represented himself as of full age is in a Court of Equity bound by payments made and acts done at his request and on the faith of such representations, and is liable to restore any advantage he has obtained by such representations to the person from whom he has obtained it. We proceed to speak in detail of the different parts of tho subject, and contracts distinction 1. Of the contracts of infants in general at common law, and Of infants' as affected by the Act of 1874. It will be convenient to depart in general: somewhat from the order of the foregoing general statement for and as to the purpose of considering this whole subject together. It is supposed commonly said that an agreement made by an infant, if such that some are wholly that it cannot be for his benefit, is not merely voidable, but void. absolutely void; though in general his contracts are only voidable at his option (@). This distinction, it is submitted, is in itself unreasonable, and is supported by little or no real authority, (a) Another distinction is made as to deeds taking complete effect by delivery or otherwise. See Shepp. Touchst. 233; Co. Lit. 51 b, note; 3 Burr. 1805; 2 Dr. & W. 340. But Examina while there is considerable authority against it. The unreasonableness of it seems hardly to need any demonstration. The object of the law, which is the protection of the infant, is amply secured by not allowing the contract to be enforced against him during his infancy, and leaving it in his option to affirm or repudiate it at his full age (a). Moreover the distinction is arbitrary and doubtful, for it must always be difficult to say whether a particular contract cannot possibly be beneficial to the party. As for the authorities, the word void is no doubt frequently used but then it is likewise to be found in cases where it is quite settled that the contract is in truth only voidable. And as applied to other subject-matters it has been held to mean only voidable in formal instruments (b) and even in Acts of Parliament (c). The fact is (as was justly remarked in the argument of a modern case we shall presently cite) that there is "a constant confusion in the books," and sometimes even in recent books, "between void and voidable" (d), so that the language of text-writers, of judges, and even of the legislature, is no safe guide apart from actual decisions. But when we look at the decisions they appear to establish in tion of au- the cases now in question only that the contract cannot be enas to bonds. forced against the infant, or some other collateral point equally thorities : consistent with its being only voidable, except when they show distinctly that the contract is voidable and not void. Thus an infant's bond with a penalty and conditioned for the payment of interest has been supposed to be wholly void; but nothing more is decided than that being under seal it cannot be ratified save by an act of at least equal solemnity with the original instrument in the case referred to one judge (Bayley, J.) rested his judgment simply on the law stated by Coke, who only says that an infant's bond with a penalty, even if given for necessaries, shall not bind him (e). A stronger case is Thornton v. Illingworth (f), where the judges said in terms that an infant's con (a) We are now speaking only of the common law. (b) Lincoln College's ca. 3 Co. Rep. 59b; Doe d. Bryan v. Bancks, 4 B. & Ald. 401; Malins v. Freeman, 4 Bing. N. C. 395. (c) See Governors of Magdalen Hospital v. Knotts, 5 Ch. D. 175. (d) Petersdorff, arg. 11 M. & W. 261. (e) Baylis v. Dineley, 3 M. & S. 477; Co. Lit. 172 a. The case is not accepted without question in America Parsons on Contracts, 269 n. (1st ed.). (f) 2 B. & C. 824. |