CHAPTER II.

CAPACITY OF PARTIES.

capacity.

ALL statements about legal capacities and duties are Variations taken, unless the contrary be expressed, to be made with in personal reference to "lawful men," citizens, that is, who are not in any manner unqualified or disqualified for the full exercise of a citizen's normal rights. There are several ways in which persons may be or become incapable, wholly or partially, of doing acts in the law, and among other things of becoming parties to a binding contract. All persons Disabili must attain a certain age before they are admitted to full ties of freedom of action and disposition of their property. This persons: is but a necessary recognition of the actual conditions of Infancy. man's life. The age of majority, however, has to be fixed at some point of time by positive law. By English law it is fixed at twenty-one years; and every one under that age is called an infant (Co. Lit. 171 b).

natural

Every woman who marries has to sustain, as incident to Coverture. her new status, technically called coverture, a loss of legal capacity in various respects; a loss expressed, and once supposed to be sufficiently explained, by the fiction that husband and wife are one person.

Both men and women may lose their legal capacity, Insanity, permanently or for a time, by an actual loss of reason. etc. This we call insanity when it is the result of established mental disease, intoxication when it is the transient effect of drink or narcotics. Similar consequences, again, may be attached by provisions of positive law to conviction for

P.

E

Extension of natural capacity: agency.

Artificial

persons.

criminal offences. Deprivation of civil rights also may be, and has been in England in some particular cases, a substantive penalty; but it is not thus used in any part of our law now in practical operation.

On the other hand, the capacity of the "lawful man receives a vast extension in its application, while it remains unaltered in kind, by the institution of agency. One man may empower another to perform acts in the law for him. and acquire rights and duties on his behalf. By agency the individual's legal personality is multiplied in space, as by succession it is continued in time. The thing is now so familiar that it is not easy to realize its importance, or the magnitude of the step taken by legal theory and practice in its full recognition. We may be helped to this if we remember that in the Roman system there is no law of agency as we understand it. The slave, who did much of what is now done by free servants and agents, was regarded as a mere instrument of acquisition for his owner, except in the special classes of cases in which either slaves or freemen might be in a position analogous, but not fully equivalent, to that of a modern agent. As between the principal and his agent, agency is a special kind of contract. But it differs from other kinds of contract in that its legal consequences are not exhausted by performance. Its object is not merely the doing of specified things, but the creation of new and active legal relations between the principal and third persons. Hence it may fitly have its place among the conditions of contract in general, though the mutual duties of principal and agent belong rather to the treatment of agency as a species of contract.

While the individual citizen's powers are thus extended by agency, a great increase of legal scope and safety is given to the conjoint action of many by their association in a corporate body or artificial person. The development of corporate action presupposes a developed law of agency,

since a corporation can manifest its legal existence only through the acts of its agents. And as a corporation, in virtue of its perpetual succession and freedom from all or most of the disabilities which may in fact or in law affect natural persons, has powers exceeding those of a natural person, so those powers have to be defined and limited by sundry rules of law, partly for the protection of the individual members of the corporation, partly in the interest of the public.

We proceed to deal with these topics in the order indicated and first of the exceptions to the capacity of natural persons to bind themselves by contract.

I. INFANTS.

Incapa

by con

An infant is not absolutely incapable of binding himself, Infantsbut is, generally speaking, incapable of absolutely binding city to bind himself by contract (a). His acts and contracts are void- themselves able at his option, subject to certain statutory and other tract. exceptions, which are partly definite, partly not definable General in terms but capable of reasonable definition in practice, of the law. 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 within 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

(a) Stated in this form by Hayes,

J., 14 Ir. C. L. R., at p. 356.

(b) As to this see p. 59, below.

statement

Of infants' contracts in general:

supposed

infants, contracts for the sale to them of goods other than necessaries, 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 has been said to be absolutely void at common law; but this distinction is believed to be 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 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.

1. Of the contracts of infants in general at common law, and as affected by the Act of 1874.

and as to It will be convenient to depart somewhat from the distinction order of the foregoing general statement for the purpose of are wholly considering this whole subject together. It has been com

that some

void.

monly said that an agreement made by an infant, if such that it cannot be for his benefit, is not merely voidable but absolutely void; though in general his contracts are

only voidable at his option (c). But this distinction is in itself unreasonable, and is supported by little or no real authority, 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 (d). 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 (e) and even in Acts of Parliament (ƒ). Thus the language of text-writers, of judges, and even of the legislature, is no safe guide apart from actual decisions.

tion of au

bonds.

But when we look at the decisions they appear to Examinaestablish in the cases now in question only that the con- thorities: tract cannot be enforced against the infant, or some other as to collateral point equally 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.)

(c) 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 this is of little practical importance, and not material to the present subject.

(d) We are now speaking only of the common law.

(e) 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.

(f) Compare Davenport v.. .Reg. (J. C., from Queensland), 3 App. Ca.at p. 128, with Governors of Magdalen Hospital v. Knotts, 4 App. Ca. 324, in which case this latitude has at last been restrained.