A minor has limited legal capacity. A minor cannot hold some of the offices of a legal subject. A minor can generally incur contractual liability if their guardian assists when the contract is concluded. However, if the contract improves the position of the minor without imposing duties on them, the minor may enter into an unassisted contract.  

A minor may therefore accept a donation without assistance or agree to release the minor from debt without imposing any duties on them.  

Assisted Contracts 

As previously mentioned, minors cannot incur contractual liability without the assistance of their guardians. The objective here is to protect the minor against their immaturity of judgement. If a minor acts with the guardian's help, this falls away, and a minor who acts is liable ex contractu as if they are a major.  

The guardian's assistance 

The guardian assisting the minor's contract may take one of the following forms.  

First, the minor guardian can enter into a contract on the minor's behalf. Secondly, the minor may personally enter into the contract with the guardian's consent. Third, the guardian may ratify the contract after it has been concluded. Finally, the guardian's consent or ratification may be supplied either expressly or tacitly.  

For example, tacit consent will be inferred if the guardian raises no objection to a contract they are aware of. Generally, the guardian is not personally liable regarding the minor's contract.  

The other party can, therefore, not claim the performance of the minor's obligations from the minor's guardian. However, if the minor acted as the guardian's agent, or if the guardian ratified a contract concluded by the minor as his agent, the guardian is liable in terms of the contract. A guardian can also be liable if they guarantee the minor's performance or bind themselves as surety for the minor's performance.  

A guardian may also incur liability based on negotiorum gestio if they are the minor's parent, as parents are obligated to support their child.  

Unassisted contracts 

The minor's unassisted contract creates a natural obligation on the part of the minor and a civil obligation on the part of the other party. Therefore, the contract is not enforceable against the minor or their guardian, whereas it is enforceable against the other party. In other words, the minor is not contractually liable to perform under the contract, but the other party is.  

The minor's unassisted contract is not void as the other party must honour their part of the agreement. As the minor's unassisted contract creates only a natural obligation, it can be ratified by the guardian or the minor after reaching the age of majority.  

Ratification has the effect of rendering the contract fully enforceable against both parties with a retrospective effect. It thus converts a natural obligation into a civil obligation. After reaching the majority, the minor may repudiate or honour the contract.  

Conclusion 

It is clear from the above that a minor child may enter into contracts. However, there are implications regarding whether the minor has been assisted by his or her guardian or parent. it is, therefore, essential to explain to the minor child the importance of contracts and what a contract entails. 

Written by Robyn Shepherd, Attorney: Family Law, SchoemanLaw