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Study Unit 5 - Age as a status determining factor - The minor - Coggle…

- - - - Minor concludes a contract with a major without any parental consent. The contract is a loan agreement for R10 000 to the minor. Minor agrees to make monthly repayments of R1 000 to the major. First month went by, the minor doesn’t repay the R1 000. Major said that the next month the minor is to pay R2 000, and by month 3 the minor had still paid nothing. What is the major able to do?
        
        Major will try contact the minors parents, and get the parents to either ratify or repudiate – contractual remedies / enrichment remedies
        
        If he cant find the parents or parents ignore, major can institute the unique enrichment action
        With the money, the minor bought a motorcycle worth R5 000 which was involved in an accident and is now worth R2 000.
        He further began scuba diving, and bought himself a wetsuit for R1 000. After his first dive, he exchanged the wetsuit for a cylinder worth R500.
        He further paid R2 000 rent/boarding lodging
        Then bought a gift for his girlfriend to the value of R1 000
        He throws his girlfriend a birthday party and spends R500
        Invests R500 in the bank (deposits)
        Unique Enrichment Action - All of the above has happened at the date of institution.
        The first transaction resulted in the R5 000 only being worth R2 000 now The second transaction an exchange was made for something worth R500 Rent: maintenance of the minor (parents can be held liable) R2 000 Deposit in the bank – R500
        Gives the major a R5 000 claim
    - - Which parent?
        
        Children's Act 38 of 2005, Section 18 - the general rule states that both parents have equal guardianship over the child therefor either parent / guardian can consent
        
        Exceptions Section 18(3)(c) - Statutory provisions:
        => Minor cannot apply for a passport without consent of both parents / guardians
        => Marriage
        => Adoption
        => Removal of child from South Africa
        => Alienation of immovable property
        
        If a minor does not have parents or guardians:
        => The court appoints a guardian for the minor
        => The High Court is the upper guardian and thus can assist the minor - a minor can approach the High Court if a conflict of interest is present
    - - Parent or guardian on behalf of the minor
        => The minor is liable in this contract
        
        Minor with consent
        => Either parent can give consent
        => How is consent given?
        *Express (Written or oral)
        *Tacit - Have not objected - Through my actions have granted consent
    - - Need to look at it through the eyes of the minor; the eyes of the major
        1) Major is bound by the contract - civil enforceable obligation
        
        Can be enforced in a court of law; is recognized by the law
        
        Can claim undue enrichment
        2) Minor has a natural unenforceable obligation
        
        The law does not recognize this obligation - cannot be enforced in a court of law
      - Minor can do one of three things:
        1) Can honour the contract (ratify)
        
        Contract will become valid
        
        Contractual remedies become available to the parties
        2) Can repudiate the contract
        
        Contract will become void
        
        Same as an infant concluding a contract
        
        Enrichment remedies will become available to the parties
        *Condicitio indebiti
        *Rei vindicatio
        3) Does nothing
        
        Only remedy available to the major - unique enrichment action
        
        Major can claim the smaller of two amounts
        => Either the amount by which the minors estate has been enriched
        => The amount by which the majors estate has been impoverished
        => At the date of the institution of the action
        *If the minor donated the property then the major (TP) cannot claim anything
        *If the minor sells for a profit then the smaller amount is claimed and the profit is kept by the minor
    - - Minor spends the R10 000 on a motorcycle worth R20 000.
        Major is impoverished by R10 000 and the minor is enriched by R20 000
        The major can only claim R10 000 – lesser of the two
    - - If major had kept the R10 000, he could have invested it and received R1 000 in interest. He could argue that he was impoverished by R11 000 and the minors estate enriched by R20 000 (motorcycle scenario from above)
        
        Major can claim only R10 000 because the unique enrichment action is limited only to the actual contract price itself
        If the major wants to hold the minor liable in terms of the contract
        The minor concludes a contract with the major, in terms of which the major lends R10 00 to the minor, and the minor undertakes to pay it back but the minor says to the major that he is actually 18 years old.
        The minor is a fraudulent minor in this case.