void at authority for holding that in any case it is in fact void. infants It is perhaps not necessary to offer any further justification c. L. for refusing to admit an ill-defined and inconvenient class of exceptions, of which no positive instance can be found (g). cannot There is one exception to the rule that an infant may Infant enforce his voidable contracts against the other party have during his infancy, or rather there is one way in which he specific performcannot enforce them. Specific performance is not allowed ance. at the suit of an infant, because the remedy is not mutual, the infant not being bound (). time he tracts. An infant may avoid his voidable contracts (with prac- At what tically few or no exceptions) either before or within a may avoid reasonable time after coming of age: the rule is that his con"matters in fait [i.e., not of record] he shall avoid either within age or at full age," but matters of record only within age (Co. Lit. 380b) (i). 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 (). 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 (g) Parsons on Contracts (1st ed.), 244, Mr. Leake, who takes no notice whatever of the formerly current doctrine, Sir William Anson (3rd ed. p. 104), and Mr. Wharton (§§ 31, 36-42), are of the same opinion. Contra Hilliard, 2. 129, and W. W. Story, § 101. (h) Flight v. Bolland, 4 Russ. 298. (i) See per Parke, B., Newry and Enniskillen Ry. Co. v. Coombe, 3 Ex. 565, 18 L. J. Ex. 325; per Cur. L. and N. W. R.. v. M'Michael, 5 Ex. (k) L. & N. W. R. v. M'Michael, Money paid under avoided contract, when not recover able. Infants' far as the interests of third persons are concerned, and to We must now consider the effect of the Act of 1874 Act, 1874. (37 & 38 Vict. c. 62), which enacts as follows: Relief Ratification still operative 1. All contracts whether by specialty or by simple contract henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void : provided always that this enactment shall not invalidate any contract into which an infant may by any existing or future statute or by the rules of common law or equity enter, except such as now by law are voidable. 2. No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age. 3. This Act may be cited as The Infants Relief Act, 1874. The 2nd section supersedes the 5th section of Lord Tenterden's Act (9 Geo. 4, c. 14) (6), by which no ratifica (1) Per Lord Colonsay, L. R. 2 H. L. 375. (m) Holmes v. Blogg, 8 Taunt. 35, 508, S. C. Moore, 1. 466, 2. 552. (n) Ex parte Taylor, 8 D. M. G. 254, 258. (0) Since expressly repealed by the Statute Law Revision Act, 1875, 38 & 39 Vict. c. 66. tion of a contract made during infancy could be sued upon for some unless in writing and signed by the party to be charged. purposes. The new enactment forbids an action to be brought at all on any such promise or ratification, and it applies to a ratification since the Act of a promise made in infancy. before the passing of the Act (p), whether the agreement is or is not one of those included in s. 1 (q). It probably also prevents the ratification from being available by way of set-off (). This, however, is a different thing from depriving the ratification of all effect. For it may have other effects than giving a right of action or set-off, and these are not touched. While the matter was governed by Lord Tenterden's Act there were many cases where a contract made during infancy might be adopted or confirmed without any ratification in writing so as to produce important results. Thus in the case of a marriage settlement the married persons are bound not so much by liability to be sued (though in some cases and for some purposes the husband's covenants are of importance) as by inability to interfere with the disposition of the property once made and the execution of the trusts once constituted: and so far as concerns this an infant's marriage settlement may, as we have seen, be sufficiently confirmed by his or her conduct after full age (s). Again an infant partner who does not avoid the partnership at his full age is, as between himself and his partners, completely bound by the terms on which he entered it without any formal ratification; and in taking the partnership accounts the Court would apply the same rule to the time of his minority as to the time after his full age. Again an infant shareholder who does not disclaim may after his full age, (p) Ex parte Kibble, 10 Ch. 373. (q) Coxhead v. Mullis, 3 Q. B. D. 439. It is held, however, that in a case which would before the Act have been one of ratification it may be left to the jury to say whether the conduct of the parties amounts to a new promise: Ditcham v. Wor rall, 5 C. P. D. 410, by Lindley and (r) Rawley v. Rawley (C. A.), 1 Q. (8) Davies v. Davies, 9 Eq. 468, supra, p. 58. Semble, no specific performance for either party of any contract made during infancy. Effect of proviso as to new consideration. Of s. 1, making certain contracts void. at any rate, be made liable for calls without any express ratification; on the contrary, the burden of proof is on him to show that he repudiated the shares within a reasonable time (†). And as Lord Tenterden's Act did not formerly stand in the way of these consequences of the affirmation or nonrepudiation of an infant's contract, so the Act of 1874 will not stand in the way of the same or like consequences in the future. In fact the operation of the present Act seems to be to reduce all voidable contracts of infants ratified at full age, whether the ratification be formal or not, to the position of agreements of imperfect obligation, that is, which cannot be directly enforced but are valid for all other purposes. Other examples of such agreements and of their legal effect will be found in the chapter specially assigned to that subject. A collateral result of this enactment appears to be that one who has made a contract during his infancy is not now able to obtain specific performance of it after his full age, for the same reason that he cannot and formerly could not do so sooner (u). The proviso about new consideration was presumably introduced by way of abundant caution, to prevent colourable evasions of the Act by the pretence of a new contract founded on a nominal or trifling new consideration (x). Where a substantial consideration appears on the face of the transaction these words can hardly be supposed to impose on the Court the duty of inquiring whether the apparent consideration is the whole of the real consideration. In the first section the words concerning the purchase of goods are not free from obscurity. If we might construe the Act as if it said "for payment for goods supplied," &c., it would be clear enough: but it is not so clear what is the precise operation of an enactment that (t) See pp. 56, 64. (u) Flight v. Bolland, 4 Russ. 298, p. 59, supra. (x) Yet is it effective for this purpose? See Ditcham v. Worrall, p. 61, supra. contracts "for goods supplied or to be supplied," other than necessaries, shall be void. It seems to follow that no property will pass to the infant by the attempted contract of sale, and that if he pays the price or any part of it before delivery of the goods he may recover it back; as indeed he might have done before the Act, for the contract was voidable, and he was free to rescind it while it was yet executory. But does it also follow that if the goods are delivered no property passes, and that if they are paid for the money may be recovered back? Such a consequence would be unreasonable, and is not required by the policy of the statute, which is obviously to protect infants from running into debt, and to discourage tradesmen and others from giving credit to them, not to deprive them of all discretion in making purchases for ready money. It is certain that when a particular class of contracts is simply declared to be unlawful, this does not prevent property from passing by an act competent of itself to pass it, though done in pursuance or execution of the forbidden contract (y). In this case also it seems clear that the delivery with intention to pass the property would pass it apart from any question of contract, and such authorities as Holmes v. Blogg (≈) and Ex parte Taylor (a), where the contract was only voidable but was afterwards rescinded, would still be applicable, so that if the goods had been accepted the money could not be recovered. On this more Qu. Was reasonable construction, however, it is difficult to see what this necesresult is obtained by the first section which is not equally well or better obtained by the second. At common law the infant was not bound by any of the contracts specified in the first section, unless he chose to bind himself at full age: by the second section he cannot henceforth so bind himself. No more complete protection can be imagined, and the first section appears superfluous. Perhaps the (y) Ayers v. South Australian Banking Co., L. R. 3 P. C. 548,559. (*) 8 Taunt. 508. (a) 8 D. M. G. 254, p. 60, supra. sary? |