Enforceable contracts

Where a minor has received necessary goods and services, what is the obligation as regards payment? As far as goods are concerned, the position is governed by s 3(2) of the SGA1979, which states that:

Where necessaries are sold and delivered to a minor... he must pay a reasonable price for them.

Two points emerge from this. First, the liability only arises after delivery. The fact that ownership has passed under the SGA 1979 rules for ‘passing of property’ is irrelevant. Secondly, the liability is only to pay a reasonable price, which is not necessarily the contract price.

It seems, however, that the position may be different as regards necessary services. The relevant authority is Roberts v Gray. The defendant was an aspiring billiards player who made a contract to go on a world tour with the plaintiff, who was a leading player. The defendant, however, backed out before the tour began. The Court of Appeal regarded this as a quasi-educational contract, and therefore within the scope of a contract for necessaries. The defendant argued that, nevertheless, no damages should be payable, because he had received nothing under the contract. By analogy with contracts for necessary goods, only where services had actually been supplied should a liability to pay for them arise. The Court of Appeal refused to accept this. Hamilton LJ commented:

I am unable to appreciate why a contract which is in itself binding, because it is a contract for necessaries not qualified by unreasonable terms, can cease to be binding because it is still executory.

Damages were awarded to the extent of the plaintiff’s full losses in organising the abortive tour. In effect, then, the minor was made liable on the agreement itself, rather than for what had been received under the agreement. This is also the approach taken to beneficial contracts of service. Thus, it seems to be only in relation to contracts for the supply of necessary goods that there can be no recovery on an executory contract.

4.4 Minors’ Liability in Tort

Although it is perfectly possible for a minor to be liable in tort, there being no age limit in relation to tortious liability, the courts will not allow such an action to be used as a means of indirectly enforcing an otherwise unenforceable contract. It is for this reason that it has been held that a minor who has misrepresented his or her age in order to obtain a loan, or non-necessary goods, cannot be sued in deceit. In other situations, it may be more difficult to decide exactly when indirect enforcement of the contract would result from a successful tortious action.

The first case to consider is Jennings v Randall. The defendant was a minor who had hired a horse for a short journey. In fact it was taken on a long journey, and suffered injury as a result of this overriding. The plaintiff’s action in tort failed on the basis that this was in substance an action for breach of contract, which would not have been sustainable because of the defendant’s minority.

This must be contrasted with Burnard v Haggis. This again concerned the hire of a horse to a minor. The defendant had said that he did not require a horse for jumping, and indeed was specifically told by the owner that he would not let the particular horse out for jumping or larking’. The price charged was apparently the lower fee appropriate for riding, rather than the higher amount which would have been charged for jumping. The defendant lent the horse to a friend who used it for jumping with the result that the horse fell and was killed. The defendant was held liable in tort to the owner. The distinction between this case and Jennings v Rundall appears from the judgment of Willis J, who commented that the act of riding the mare into the place where she was killed was as much a trespass as if:

... without any hiring at all, the defendant had gone into a field and taken the mare out and killed her. It was a bare trespass, not within the object and purpose of the hiring.

Thus, the test is the ‘object and purpose’ of the contract. Did the tortious act occur as part of the performance of the ‘object and purpose’? If so, there will be no liability. So, in Jennings v Rundall, the object and purpose was riding the horse on a journey. In Burnard v Haggis, however, jumping was outside the object and purpose, and the defendant was therefore liable.

This approach has been confirmed by later cases. Thus, in Fawcett v Smethurst, the taking of a hired car on longer journey than indicated at the time of hire was still within the contract’s ‘object and purpose’. However, in Ballett v Mingay, the defendant, who had hired a microphone and amplifier and was found to have lent them to a friend, was held to be altogether outside the scope of the contract, and the defendant was therefore liable in tort.

Insofar as there is immunity, it extends not only to torts committed in the course of a contract, but also fraud which induces a contract. Thus, fraudulent misrepresentation of the minor’s age will not stop the minor from pleading lack of capacity, and avoiding the contract. Nor will it give the adult party a right to bring an action in tort for deceit. Where property had been transferred as a result of such fraud, equity had developed remedies in certain situations to allow the adult party to recover it. Although this equitable remedy is still available in theory, the enactment of the more general provision relating to restitution in s 3 of the MCA 1987 means that it is of virtually no practical importance, and so is not discussed further here.

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