Minors’ Contracts in the Digital Age

Abstract

Minority is well established as a form of legal incapacity across jurisdictions and laws. Some countries grant minors with limited capacity to contract while others consider all minors’ contracts to be void. These rules were laid down in the pre-digital age. Minors today are entering into more and varied transactions than the generations before them, be it shopping on e-retail websites, creating social media accounts, or the more traditional employment contracts. This paper examines how the three jurisdictions of England, India and South Africa deal with minor contracts in the digital age. While South Africa permits minors above the age of seven years to enter into contracts with parental assistance, the English and Indian position is that minor contracts are unenforceable against minors, unless they are ‘contracts for necessaries’ or contracts for the benefit of the minor. Judicial interpretation of these categories has been fluid and indeterminate, creating its own set of problems. This paper argues from the Indian standpoint that the current understanding is inadequate to address the issues that will arise from the mismatch between law (where minority is almost synonymous with incapacity) and reality (where minors are increasingly entering into contracts). The author suggests that the definition for minority for contractual liability should be graded after the model of criminal liability and demonstrates that there are some, albeit imperfect, gains to be had from the South African system.

Consumers as Unassisted Minors: Asymmetrical Sanction for Unfair Contract Terms

“…If the consumer did not perform and the other party did, the contracting party may sue the consumer only for unjust enrichment, and similarly, if the consumer performed only in part, there would be a claim for unjust enrichment limited by an offset, since to natural obligations, an offset can also be applied. This approach is also justified by the still-inspiring example of the South African regime (Gangwar 2022), and may also indicate that the Roman idea of a limping transaction can be combined with restiutio in integrum, as in Justinian's time, to offer an alternative theoretical explanation of consumer protection.…”

“…What I would like to emphasize is a different kind of sanction applied in Roman law to unassisted pupillius-minor under the age of puberty which in fact differs from the restitutio in integrum and even more properly is applied to cases nowadays associated with minors-children under the age of puberty. What is quite interesting, that in South African law similar merger of two regimes has taken effect when the minor was allowed to claim restitutio in integrum (Gangwar 2022).…”