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LAW OF PERSONS LEARNING UNIT 3: (THE ASSISTED CONTRACT: (RESTITUTIO IN…

- - - - Before July 2007 the age of majority in SA was 21.
- - - - The law still limits the capacities of minors to perform juristic acts to protect them against their immaturity of judgment.
    - - They can usually improve their legal position (by acquiring rights/terminating legal obligations) without assistance.
- - - - Thus no capacity to conclude contracts.
    - - This does NOT mean that infantes can never acquire rights and duties in terms of contract.
      - They can if their guardian concludes a contract on their behalf, thus the infant acquires the rights and duties and NOT the guardian.
      - It is NOT enough for the guardian to assist the infant, the guardian must act on the infants behalf.
      - The infants' lack of contractual capacity extends EVEN to contracts through which they acquire ONLY rights and NO obligations ie donations. The infant does not have the capacity to accept the donation-The guardian must accept the donation in the infants behalf.
    - - Infants CAN incur liability on the basis of unjustified enrichment even when they act on their own behalf.
      - Because this form of liability arises by automatic operation of law and does NOT depend on whether or not the person is able to understand the legal nature of their acts.
  - - - SERIOUS MATTER.
    - - If in beach of a binding contract damages can be awarded by the court.
      - These can be extensive : They are aimed at putting the other contracting party in the same position it would have been if the contract had been fully and faultlessly performed.
    - - If informed consent is given then the minor is assisted.
      - Guardians do NOT need to know every detail of the contract to give informed consent to it.
      - The guardian must know the material terms of the contract.
    - - Does NOT matter when/form the assistance takes place nor which guardian gives consent.
      - Guardians can enter into contracts on behalf of the minor.
        
        There certain agreements guardians CANNOT conclude on behalf of a minor ie Antenuptial contract.
        
        A guardian cannot enter into a contract on behalf of a minor if the contract only comes into force after the minor becomes a major.
        
        A guardian CAN enter into a contract on the minors behalf even if the minors obligations continue after the minor attains majority PROVIDED that the contract comes into operation DURING the period of minority.
        
        If a contract will be beneficial to a minor, the guardian is obliged to provide the necessary assistance. If a guardian refuses to give consent/unable to do so, the court may order the guardian to to give the necessary consent OR itself consent to the contract instead of the guardian.
        
        Guardians can revoke their consent if the transaction as set out in the contract has not yet taken place.
      - Minors can go off on their own and can enter into contracts with prior permission.
      - They can enter into contracts and then just tell their guardians about it.
      - Consent may be expressed ie written/signed.
      - Consent may be silent ie implied/tacit
      - ie The guardian will be deemed to have consented to the minors contact if he/she knows about it and does NOT OBJECT to it,
      - Law always requires informed consent no matter what form/when/which. The guardian must understand what he/she is consenting to.
- - - - He/She can just withdraw from the contract without fearing the consequences.
      - Thus the minor can choose to repudiate the contract and the major party will not be able to do anything.
    - - The other party to the contract who is a major, cannot enforce performance from the minor. If the major sues the minor for performance, the minor can raise their minority as a defence.
  - - - There is an unassisted minor, which means he/she can NOT incur any contractual obligations, thus the major party has NO contractual remedy and can NOT sue the minor. But the major party CAN use unjustified enrichment as a remedy. This remedy however is VERY WEAK and not as STRONG as a contractual remedy.
  - - - 1) The plaintiff can sue only for the amount by which he/she is in fact impoverished.
      - 2) He/She can sue only for the amount by which the minor defendant remains enriched on the day action is instituted.
    - - They might lose or destroy the thing.
      - Sell the thing for less than it's actual value.
      - Sell the thing and spend the proceeds on luxuries that they would NOT ordinarily buy.
    - - The surrogates are the things that replaced the thing by which the minor had been enriched.
      - The minor will still be enriched if he has spent the money through necessity OR if it would in any event have had to come out of his estate.
- - - - This rule applies even in situations when the guardian him/herself sigs the contract on behalf the minor child.
      - It is ALWAYS the minor which incurs the legal rights and obligations NOT the guardian.
    - - FIRST) The guardian will be liable if he/she provides SURETY for the minors debts. This does NOT mean that the guardian is liable in terms of the minors contract., the reason that the guardian is liable in this situation is because he/she is bound by his/her own contract- The contracts of SURETYSHIP.
      - SECOND) The guardian will be contractually liable if the minor acted as the guardians agent. Here the contract is between the guardian and the third party. The minor has signed the contract but NOT on his/her own behalf, this is not the minors contract.
      - In some circumstances the guardian will be liable on the grounds of unjustified enrichment OR negotiorum gestio. Liability on the grounds of enrichment or negotiorum gestio arises where a third party provides a minor with necessaries such as food and clothing.
        
        The third party has a claim against the parents, because it is the parents' duty to maintain their children. However the parent/guardian is NOT bound in contract in ANY way.
        
        The third party cannot insist that the guardian pays any outstanding contractual balance.All the third party can claim is FACTUAL enrichment -in the case of the enrichment claim- OR reasonable expenses -if using the negotiorum gestio remedy-.
  - - - 1)The minor was indeed a minor at the time he/she entered into the contract.
      - 2) The minor is bound by the contract (implies he/she had the assistance of the guardian/court).
      - 3) The court was inherently prejudicial to the minor at the time he/she entered into the contract.
    - - Guardians can also apply for the remedy on the minors behalf. If the guardian fails to assist the minor in litigation , a curator ad litem may be appointed. Minors can also wait until they have become majors and then sue on their own behalf. Former minors cannot use the remedy if they have ratified their contracts after attaining majority.
      - Another danger of waiting till majority is that the remedy might prescribe/expire.
      - The remedy CANNOT be used to get out of a marriage/to escape liability for crimes and delicts.
      - The remedy is probably available to emancipated minors, but is DENIED to fraudulent minors.
- - - - Former minors can also ratify their own contract by implication. ie If they try to force the other party to perform their side of the bargain.