Sheetal Tripathy

Need for reformation in laws relating to minors?

Posted by Sheetal Tripathy on in Analysis

“Competent to contract”

This is one thing that almost everyone who has covered even a minute portion of contracts would know. Why I am writing a blog on this topic is not because I want to brag about my legal knowledge here, because there is nothing to brag about. Every law student would probably know of this. But the reason behind me sitting down and typing out all this is the fact that for the last couple of months, THIS has dominated my thought process.

At first, this might just look like ‘just another law’, but somewhere deep down it goes on to reveal the loopholes in the same. The world of the contractual capacity of a minor is extremely volatile. While studying the above mentioned law, the only thing I thought of was, “I wasted my minority years. I could have done so much and just got away with it.” And mind you, its a very bad sign when a law student thinks that way. For people who are not aware of this, Section 11 of the Indian Contract Act, 1872 deals with what is known as ‘Competency to Contract’, under which, minors (anyone below the age of 18 years) is declared to be incompetent. Leaving this aside, this Section provides with a few laws, which does nothing but give the minor the freedom to do what he wants, and not be liable in any which way. As opposed to what the the Law Commission of India has to say, these provisions seem like they have been made more to cause a loss in some way to the adult than to ‘protect the rights of the minors’.

In the modern age scenario, where minors are ‘minors’ only because of their age and not their ‘level of understanding’, its high time the Law Commission of India makes these laws a little more stringent, at least towards minors who fraudulently enter into contracts. Currently, even if a minor ‘falsely represents’ himself to be a major and enters into a contract, there is no relief available to the other contracting party. Which does not suffice the ‘aim’ of creating laws, that is to provide the people with justice. The ‘law of estoppel’ does not apply to a minor. This means that like in the above statement, if a minor represents himself to be a major, he is ALLOWED to later state that he is not, and then get away with it. The contract is just declared by the Court as ‘void ab intio’.

Numerous amendments have been made till date for the betterment of the existing laws and various sections of the law repealed to make them more just and unbiased, but unfortunately there still are many lacunas in the law which the minors take undue advantage of and the majors are the ones who have to bear the brunt, without any fault of theirs.

Unfair? Well, doesnt seem like the law making body cares.

But hopefully, the Law Commission is listening.

:)

"talented"

Comments

abhishek_bansal2011 30 Sept 2011, 12:05
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This provision is for the benefit of minors and to protect them from entering into misleading and self harming contracts. The legislature enacted this provision to prevent minors from entering into contracts of any nature and giving them immunity thereof. The objective of the legislature being to protect minors from being abused by a major. There has to be some difference between the capability of entering into a contract by a person who is major and the one who has not attained majority. No laws in the world have made a minor competent to contract. If that be so then insanity can also not be taken as a defence to the validity of a contract.
tobeornottobe 8 Oct 2011, 19:13
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True that. Every law/act is made for the benefit of some person, and the same goes for the section in question. However, the point here is not whether it should have been made or not, the point here is that maybe somewhere a little too much liberty has been provided to the minor. And on your point of every law in the world making a minor incompetent, on one hand your point is absolutely correct, but on the other hand, the English law, has something known as the 'Doctrine of Restitution", which enables the adult party to get a compensation if he has been cheated by the minor. But, the Indian law fails to accomodate such a provision. Also, if you are aware of the landmark case in this regard, Mohori Bibee v. Dharmodas Ghose, the defendant had asked for compensation under Section 64 and 65 of the Indian Contract Act. But the contentions were rejected. However, the Law Commission of India at that time had strongly criticized the application of 65 and also mentioned that 'the adult party should be given compensation under Section 65'. But no change has been made till date. Hence, it is not about justifying the making of this Section, but about justifying the extent of liberty given to the minors under this Section.
tobeornottobe 8 Oct 2011, 19:13
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True that. Every law/act is made for the benefit of some person, and the same goes for the section in question. However, the point here is not whether it should have been made or not, the point here is that maybe somewhere a little too much liberty has been provided to the minor. And on your point of every law in the world making a minor incompetent, on one hand your point is absolutely correct, but on the other hand, the English law, has something known as the 'Doctrine of Restitution", which enables the adult party to get a compensation if he has been cheated by the minor. But, the Indian law fails to accomodate such a provision. Also, if you are aware of the landmark case in this regard, Mohori Bibee v. Dharmodas Ghose, the defendant had asked for compensation under Section 64 and 65 of the Indian Contract Act. But the contentions were rejected. However, the Law Commission of India at that time had strongly criticized the application of 65 and also mentioned that 'the adult party should be given compensation under Section 65'. But no change has been made till date. Hence, it is not about justifying the making of this Section, but about justifying the extent of liberty given to the minors under this Section.
Yogesh 22 Nov 2011, 19:40
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ASSUMING that u r a law student like me...... u needed to be informed that in India, judgments right from wasinda khan(which clarified that Section 115 of the Indian Evidence Act is applicable to minors), to Khan Gul(where Lahore High Court ordered return of the unfair advantage gained via misrepresentation by a minor), it is very clear that the there exists no problem as such as it is often showcased to be. And the recommendation made by the Law Commission was flawed. They were ok with a minor's agreement being absolutely void but at the same time wanted section 65(which presupposes a contract) to be applicable to a minor's agreement where there is no contract. This was the simple reason why Indian Parliament restrained from implementing the suggestions.

When it comes to the unfair advantage to a minor.
Lahore High Court had clarified back in 1940s that in such cases unfair advantage gained should be returned, and this is neither a contradiction to Indian Contract Act, nor to the Mohiribibi principle as when the they are simply restoring the parties back to the state in which they were in before the transaction was made.

And yes, had you done all that, you would have been in a problem.
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