Entering into a contract with a minor
Introduction
This article explains the critical legal matters that organisations and individuals should be aware of when entering into a contract with a minor.
Who is a minor?
A minor is someone under the age of 18 years according to the Births and Deaths Registration Amendment Act (No 1 of 2002). This is called the age of majority. The age of majority was reduced from 21 to 18 years by this Act.
The general position
Everyone knows that to form a legally binding contract there must be an offer, acceptance and an intention to create a legally binding contract. The law presumes that some people do not have the power to make contracts. These people are:
- Children under 7 years;
- People who are mentally insane;
- People who are very drunk or drugged.
A minor can therefore, enter into a contract. However, the law always assumes that a minor cannot understand the implications of a contract. So, whatever caveat is drafted into the contract, a minor will remain protected even to the disadvantage of the other party.
Further, a contract with a minor is void able. The minor is able to cancel any contract at any time prior to reaching the age of majority and for a reasonable period after that time. There is no requirement for the minor to have a justifiable reason for this, it can be done on a whim or where it may be advantageous to the child to do so.
Exceptions
Fortunately, the situation is not quite so clear-cut for all contracts with children. There is one key exception to the general position outlined above and this relates to contracts of service, apprenticeship and education with children. The rationale behind this exception is to give organisations certainty when entering into a contract with a child that enables that child to earn his living or to start to do so.
These contracts can potentially be binding on children provided that they are beneficial to the minor. This exception will always be subject to the child being at least old enough to understand the nature of the contract that they are entering into - if they are not, the contract will fall outside this exception and be void able in line with the general position.
The position at law
Even if a contract with a minor does fall within the contract of service exception and is considered beneficial, one must also consider the extent to which a court would enforce such a contract.
A court would not "force" any person (whether it be an adult or minor) to carry out a contract for personal services because as a matter of public policy parties should not be forced to continue in a personal relationship against their will. Therefore the only remedy is of damages arising from breach of contract.
What is the best solution for me?
First, it is always a good idea to include a guarantor provision, especially where the guarantor is the parent.
But this does not solve the matter. A good way to go about it is to let the guardian (often a parent) enter into the contract on behalf of his minor protégé (son or daughter). However, case law dictates that a parent is not liable on their child's contract unless the child acts as their agent (Blackburn v Mackey (1823), Law v. Wilkins (1837) and Mort more v Wright (1840)). This supports the proposition that in English Law, a minor's contract cannot be validated by the consent or authorisation of their parent or guardian. This proposition has not been enforced by legislation and remains somewhat unclear.
To deal with this, it is a good idea to make specific mention in the guarantee that the parent will continue to remain liable for all associated costs even if the minor party to the contract should repudiate. Of course the risk of repudiation is low, but nevertheless, worth considering.
