The Gazette 1978

DECEMBER 1978

GAZETTE

THE CONTRACTUAL LIABILITY OF INFANTS IN IRISH LAW: A RESPONSE TO THE LAW REFORM COMMISSION

Robert Clarke, LL.M., Lecturer in Law, University College, Dublin.

"necessary" would exclude a luxurious article, the leading Irish authority on the point, which is not adverted to incidentally, may well take a more restrictive view of what constitutes a necessary than that advanced in the English case of Ryder v Wombwell (1868) L.R. 4Ex 32 the one authority mentioned in this context. In Skrine v Gordon (1875) I.R. IX C.L. 479 Lawson J. had to consider whether a hunter supplied to the son of an English gentleman was a necessary. In holding that this item was not a necessary, Lawson J. stated, "Luxuries or amusement are quite distinct from necessaries", even thought the horse was quite clearly an item of utility. Had the horse been used to ferry the young gentleman to and from his place of work, the position may well have been different. If Skrine v Gordon had been cited by the Law Reform Commission it would have been possible to illustrate what a luxurious item of utility is and furthermore the impression that there are no Irish authorities on the point would not have been given by the working paper. A more substantial criticism of the Commission's analysis of the liability of an infant for necessaries turns on the failure to consider what the infant is obliged to pay when supplied with necessaries. The Sale of Goods Act, S.2 provides that where necessaries are sold and delivered the infant is only liable to pay "a reasonable price." Nevertheless the Law Reform Commission, in Paragraph 3.12 state, "For an action by a vendor against a minor for the price of goods [my italics! that he alleges to be necessaries the vendor must prove t h a t . . ." Does 'price' in this statement mean the contract price or a reasonable price? The Commission then set out, in the same paragraph, three conditions that must be satisfied before an infant will be held liable. The conditions are inaccurate for it is doubtful whether an infant is liable for necessaries that have not been delivered. The Irish case of Blake v Concannon (1870) is often cited as authority for the view that liability does not arise simply from the fact of the agreement but only after delivery. What Blake v Concannon is an authority for will be discussed below, but on principle the liability of an irfant should arise ex delicto rather than ex contracto: C. F. Treitel on Contract 4th Ed., 370, Working Paper No. 2, Paragraph 3.13 states, "if an adult lends money to a minor to buy necessaries and the minor buys the necessaries with this money, the minor is liable to the lender of the money because the latter stands in the place of the person who had been paid." This proposition is a rule of equity followed in certain English divisions entitling the lender to step into the shoes of a supplier and allow the lender to take on the position of the unpaid supplier of necessaries. Unfortunately, the Law Reform Commission state the

The Law Reform Commission Working Paper No. 2 1977, which examined The Law Relating to the Age of Majority, The Age for Marriage and some connected subjects, could have provided an extremely thorough examination of the legal position in Irish civil law, of a person below the age of majority. Indeed, as the Law Reform Commission themselves acknowledge in paragraph 1.2 of the working paper, the Attorney General originally requested the Commission to examine and research, "the law relating to majority and if thought (sic) fit, to formulate proposals for its reform and submit them to him". The Commission have decided, in response to this request, to release the second working paper which limits the scope of investigation to the age of majority and of the connected question of the age at which persons can and should enter into marriage. Nevertheless the working paper does purport to provide a synopsis of the current legal position of persons under the age of 21 with particular reference to the contractual and tortious liability of minors. The Law Reform Commission refrain from making any detailed recommendations to change the law on the tortious liability of the minor. Instead, the Commission simply propose that the age of majority should be reduced to 18 and that a person under that age should reach majority on marriage. The Commission suggest that, on balance, there should be an "absolute minimum age for marriage" of 16 years and also, "a consent age for marriage" of between 16 and 18 years. "The free age for marriage" should be the same as the age of majority. The consequences of even these reforms on the civil liability of an infant are profound. A person of 16 or 17 years would, after his or her marriage, have the capacity to enter into a valid contract and would be subject to the liabilities of any other adult. Arguably, this tilts the fine balance between protecting a young person from the effects of his or her inexperience and the conflicting desire to mitigate the hardships of persons dealing with young persons in favour of the older party. This quite substantial change in the law is not made any the more palatable by the working paper. Paragraphs 3.6 to 3.25 in Chapter III attempt to set out a bare outline of the present law concerning the legal capacity of a minor. It is the present writer's view that the Law Reform Commission's analysis in Chapter III is over simplified and, in several respects, misleading. Indeed, some of Chapter III seems to have been written without reference to Irish authorities of importance. The Law Reform Commission analyses the contractual obligations of a minor under three headings, the first of these being contracts that are binding on a minor. Whilst it is true to say that the common law definition of

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