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S. 2.

The purchase by the infant, however, was not absolutely void, but only voidable in his favour" (f).

This was the common law rule. By the Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), s. 1, it is provided that "all contracts, whether by specialty or by simple contract, henceforth entered into by infants . . . for goods supplied, or to be supplied (other than contracts for necessaries). . . . shall be absolutely void." Sect. 2, dealing with ratifications, is, in the case of sales of goods, superfluous.

In spite of the generality of the above provisions, the maxim quod fieri non debuit, factum valet will, it is apprehended, apply in some cases, and things actually done under such void contracts of sale, such as the transfer of the property to, or payment by, an infant buyer, will not be invalidated. This was early decided in Holmes v. Blogg (g), where a payment made by an infant for a consideration he had actually enjoyed was held irrecoverable; and so in a late case (h) (where Holmes v. Blogg was not cited). And Lord Mansfield's opinion (i) was that a voluntary payment was, even without any enjoyment of the consideration, irrecoverable. See Prof. Pollock on the general question (j).

"But an infant is competent to purchase for cash, or on credit, a supply of necessaries; and his purchase on credit will be valid even though it be shown that he had an income at the time sufficient to supply him with ready money to buy necessaries suitable to his condition" (k); and his liability for necessaries will extend to such goods purchased by him as a tradesman, but consumed for household purposes (1).

But the liability of the infant is on simple contract only. Thus, he is not liable on a bill of exchange, though given for necessaries (m). But he is liable on a bond, without penalty, given for necessaries, the form, however, of the contract being disregarded, and the obligation being treated as one on simple contract (n).

(f) Benj. p. 23, quoting (inter alia) Gibbs v. Merrell (1810), 3 Taunt. 307; Hunt v. Massey (1834), 5 B. & Ad. 902. See also Williams v. Moor (1843), 11 M. & W. 256.

(g) (1818), 8 Taunt. 508.

(h) Valentini v. Canali (1889), 24 Q. B. D. 166.

(i) In Earl of Bucks v. Drury (1761), 2 Eden, 60, quoted in Holmes v. Blogg.

(j) On C. (5th ed.) p. 63.

(k) Burghardt v. Hall (1839), 4 M. & W. 727; Peters v. Fleming (1840), 6 M. & W. 42.

(1) Tuberville v. Whitehouse (1823), 1 C. & P. 94.

(m) In re Soltikoff, (1891) 1 Q. B. 413.

(n) Walter v. Everard, (1891) 2 Q. B. 369, quoting Russell v. Lee (1662), Lev. 86; Coke, Litt. 172; Vin. Ab. Enfant, C. (7).

As regards the liability of an infant as a seller of goods, s. 1 of the Act above quoted would appear to have no application. S. 2 says "that no action shall be brought whereby to charge any person, upon any ratification made after full age of any promise or contract made during infancy," whether with a new consideration or not. Under the latter section the infant seller will be protected, though he may have ratified after majority. But it would seem that the contract would otherwise be enforceable by the infant against the buyer (o), and voidable by the infant as at common law.

In two early cases an infant was held not liable on the warranty of a horse (p), though fraudulent (q).

S. 2.

Scotland.

Secondly, as regards minors in Scotch law. See on this, Bell's Minors in Dict. p. 652; Ersk. Pr. (15th ed.) 94, 95; and Lor. Handb. s. 412; and Infants' Relief Act, 1874, quoted supra.

Thirdly, as regards lunatics." As to lunatics and persons non Lunatics. compotes mentis, the rules of law regulating their capacity to purchase do not differ materially from those which govern such contracts when made by infants. There is no doubt that it is competent for the lunatic or his representatives to show that when he made the purchase his mind was so deranged that he did not know or understand what he was doing. Still, if that state of mind, though really existent, be unknown to the other party, and no advantage be taken of the lunatic, the defence cannot prevail; especially when the contract is merely executory, but executed in whole or in part, and the parties cannot be restored altogether to their original position. In the case cited in the note (r), all the authorities will be found quoted and examined "(s).

Lord Esher, M.R., in a late case (t), shows that the limitations of the rule as stated above ("especially, &c.") are only, "à fortiori, arguments or matters of aggravation," and not essential.

Lopes, L.J., thus concisely states the law in the same case (t): "Contracts made by a person of unsound mind are not voidable at his option if the other party to the contract believed him to be of sound mind at the time the contract was made. In order to avoid a fair contract upon the ground of insanity, the mental incapacity of the party seeking to avoid it must be known to the

(0) Warwick v. Bruce (1813), 2 M. & S. 205.

(p) Howlett v. Haswell (1814), 4 Camp. 118.

(q) Green v. Greenbank (1816), 2 Marsh. 485.

(r) Moulton v. Camroux (1848), 2

Ex. 487; 4 Ex. 17. As to what con-
stitutes mental incapacity, see per
Brett, L.J., in Drew v. Nunn (1879),
4 Q. B. D. 661.

(s) Benj. p. 33.

(t) Imperial Loan Co. v. Stone, (1892) 1 Q. B. 297.

S. 2.

Drunkards.

other contracting party. The defendant must plead and prove both insanity and the plaintiff's knowledge of it. The burden of proving both the insanity and the plaintiff's knowledge of it lies on him."

"So far as relates to supplies of necessaries to a person of unsound mind, there can be no question that, when no advantage is taken of his condition by the seller, the purchase will be held valid" (u). But the liability is one quasi ex contractu. "The term 'implied contract' is a most unfortunate expression, because there cannot be a contract by a lunatic. But wherever necessaries are supplied by a person who by reason of disability cannot himself contract, the law implies an obligation on the part of such person to pay for such necessaries out of his own property. [But] the necessaries must be supplied under circumstances which would justify the Court in implying the obligation" (x). The proviso above quoted would doubtless apply where the seller took advantage of the position of the lunatic (y).

Fourthly, as regards drunkards.-"A drunkard, when in a state of complete intoxication, so as not to know what he is doing, has no capacity to contract in general" (z). But his contract is not void, but voidable (a), if the other party knew (as must generally be the case) of the intoxication (b).

A drunkard, as above defined, would be liable for absolute necessaries supplied to him while in that condition; and Pollock, C.B., put the ground of the liability as follows:-"A contract may be implied by law in many cases, even when the party protested against any contract. The law says he did contract, because he ought to have done so. On that ground the creditor might recover against him when sober, for necessaries supplied to him when drunk" (c).

It will be seen from the above extract that Pollock, C.B., puts the liability of the drunkard as one quasi ex contractu in substantially the same terms as Cotton, L.J., applies to a lunatic in

(u) Benj. p. 24; Baxter v. Portsmouth (1826), 5 B. & C. 170; Rhodes v. Rhodes (1890), 44 Ch. D. 94, resolving the doubt which had been expressed in In re Weaver (1882), 21 Ch. D. 615.

(2) Per Cotton, L.J., in Rhodes v. Rhodes, supra.

(y) As in Levy v. Baker (1827), M. & M. 106, though this was not a case of necessaries.

(z) Benj. p. 34, quoting (inter alia) Moulton v. Camroux (1848), 4 Ex. 17; Pitt v. Smith (1811), 3 Camp. 33. See also Jenkins v. Morris (1880), 14 Ch. D. 674 (lunacy).

(a) Matthews v. Baxter (1873), L. R. 8 Ex. 132.

(b) Imperial Loan Co. v. Stone (a case of lunacy), (1892) 1 Q. B. 297, quoting Gore v. Gibson, infra.

(c) Gore v. Gibson (1845), 13 M. & W. 623; Benj. p. 34.

Rhodes v. Rhodes quoted above, and it is presumed that the limitation would also apply, viz., that if advantage be taken of the drunkard's condition, the obligation might not be implied (d).

Are sold and delivered to.-The obligation to pay for the goods incurred by the person under incapacity does not arise. unless the contract be executed (1) by a transfer of the property, as in all cases; and (2) by delivery.

There must of course be a sale to the infant, &c., intended. The facts, however, may show that no obligation was intended, as in the case of a gift (e). So also the credit may be given, as before the Act, to the parent (f). The word "sold" is in this sub-section used in its popular sense properly speaking, there can be no sale to an infant, as he can only subject himself to an obligation quasi ex contractu.

Secondly, there must be a delivery, i.e., the "contract" must be executed for the benefit of the buyer, before the price is payable. It would, therefore, seem that the buyer is not liable on any undertaking to pay for the goods before delivery, even though he expressly undertook to do so. With regard to infants, if the Infants' Relief Act, 1874, allowed such a contract, it must, it is submitted, be so far repealed. See the Act discussed, post, p. 14.

The infancy must be calculated at the time the property passes. Thus it has been held that, if the goods are delivered to a carrier when the buyer is an infant, a plea of infancy is good, though the buyer be over age at the time of actual delivery (g).

S. 2.

disability for non-accept

ance of

necessaries.

(1) At common law.

In this connection a question arises whether a buyer under Liability of disability is, or is not, liable for non-acceptance of necessaries. buyer under No case previous to Rhodes v. Rhodes (h) has been found which in any way throws light upon the point, and it is noticeable that Coke, in the extract which is the locus classicus on the subject (i), says, not that an infant may contract, but that he " may bind himself to pay for" necessaries. The latest case in which the grounds of the liability of persons under incapacity for necessaries are most clearly dealt with is Rhodes v. Rhodes, quoted supra. The language of the judgment of Cotton, L.J., appears to be carefully chosen; and, moreover, the Court expressly laid down the law as applicable to all persons under incapacity. It will be

(d) See remarks of Abbott, C.J., in Baxter v. Portsmouth (1826), 5 B. & C. 170 (a case of a lunatic).

(e) As in Rhodes v. Rhodes (1890), 44 Ch. D. 94 (a case of lunacy).

(f) Mortimore v. Wright (1840), 6 M. & W. 482.

(g) Griffin v. Langfield (1812), 3 Camp. 255.

(h) (1890), 44 Ch. D. 94.

(i) Co. Litt. 172.

S. 2.

(2) As regards infants under the Infants' Relief Act.

seen that Cotton, L.J., speaks of the "supply" of necessaries, and of the quasi contractual obligation "to pay for such necessaries out of his own property." The note running through all the judgments is that the obligation arises from a benefit actually received, and the consequent injustice that the goods should be unpaid for, if supplied on the faith of payment.

Having regard to the judgments in the above case, it is submitted that the sole liability at common law, of buyers under disability to contract, is to pay for the necessaries when delivered. To imply a quasi contractual obligation to receive and accept necessaries is a widely different thing from implying such an obligation when the benefit has been actually received. In the former case the necessaries are not, it is submitted, supplied" at all; but, however that may be, the Court would consider that the supply took place under circumstances in which they would not imply the obligation to accept or pay.

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The words in Cotton, L.J.'s judgment, "out of his own property," should be noticed. They seem to show that the view of the Court was, that the liability of the buyer under disability should be treated as, in the words of Bowen, L.J., in another case, with respect to married women (k), a "proprietary," and not a personal liability. If this be so, an additional argument exists for the view above submitted.

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Such being, as it is conceived, the principles of the common law, the question remains whether the single case of infants has been affected by the Infants' Relief Act, 1874, which renders void "all contracts for goods supplied, or to be supplied (other than contracts for necessaries)." Do the latter words mean contracts for necessaries, with all the liabilities thereunder which are found in all contracts? or do they mean contracts to pay for necessaries supplied?" Having regard to the fact that the liability of an infant to accept necessaries has never been dealt with in any reported case (which in itself is a strong argument against the implication of the liability), and to the tenor of the judgment in Rhodes v. Rhodes, and the way in which the obligation is stated by Coke (supra), the editors submit that "contracts for necessaries" in the Infants' Relief Act must be construed as having the second meaning put upon them above; and, consequently, that, so far as any obligation to accept necessaries is concerned, the contracts of infants are absolutely void.

If the above interpretation be correct, it will be seen that the present section of this Act merely affirms the previous law.

(k) Scott v. Morley (1887), 20 Q. B. D. at p. 128.

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