Professional Documents
Culture Documents
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INTRODUCTION
The law regulating the contractual capacity of persons below the age
of 21 years in Ghana is largely outdated and fraught with
inconsistencies: This is perhaps hardly surprising, in view of the fact
that most of the applicable rules date back several centuries, and were
thus influenced by social and economic standards which have no
relevance to today's modern society. What is surprising, is the fact that
very little has been done to reform this aspect of the law inspite of its
far-reaching economic implications. The need for careful reflection in
the design and review of the law on contractual capacity is even more
urgent in this country because of the relatively high percentage of the
population aged between 15 and 21 years."137 In view of the need to
encourage maximum participation in the economy, it is clearly
counterproductive to maintain outdated rules, which deny legal
significance to the activities of such a significant portion of the
population.
The task of monitoring or limiting contractual capacity on the basis of
age involves the making of difficult choices between two equally
legitimate and competing policies: that of protecting those who lack
capacity and that of safeguarding the expectation and reliance
interests of adult parties who deal fairly with minors. In seeking to
achieve an acceptable balance, the law must tread the fine line
between protecting the incompetent and incapacitating the competent
through "protection". In other words, the extent of legal protection
granted must be enough to shield the young and vulnerable from the
pitfalls of the marketplace, while at the same time ensuring that their
freedom of contract is not unduly stifled by the zeal to protect. In
Ghana, a minor, for purposes of contractual liability, is a person, aged
below 21 years. A person below this age is deemed by the law to be
incapable of creating binding contractual obligations 138 or
representing himself in civil litigation. 139 The plea of minority thus
constitutes a complete defence to any class of contracts entered into
Apart from contracts for necessaries, for which the minor assumes full
responsibility, and voidable contracts for which the minor is liable in
the absence of repudiation, no other contract entered into by a minor
is in any way binding on him unless he ratifies it upon attaining
majority. Thus contracts entered into by a minor with an adult party,
for the purchase of non-necessary goods or services, for a loan of
money, or for the hiring or purchase of goods for the infant's trade are
not in any way enforceable against the minor. 171 In practical terms,
this means that even where an adult party has already performed his
side of the contract, he has no means of recovering money or property
transferred to the infant under such an unenforced contract. Thus, a
20- year old student who has obtained expensive video recording
equipment on hire-purchase or on credit from an adult supplier could
renounce the contract with impunity and refuse to pay for it without
incurring any liability whatsoever. What is more, the adult party has no
legal right to compel the minor to pay for it or sue to recover the
equipment. The law in such cases places an intolerable burden on the
adult contracting party, who to all intents and purposes, is deemed to
transact business with minors at his own peril. Even though as
between the adult party and the minor, the burden should rest with the
former on policy grounds, it is important to ensure that the policy
objective of protecting the vulnerable in society is not achieved at too
great a cost.
An acceptable balance could be achieved through the doctrine of
restitution. The courts could be granted the discretion to order either
party to return to the other whatever has been obtained under the
unenforceable contract where it would be fair and reasonable to do so.
172 It is suggested that greater equity would be achieved if an adult
party, who has partially performed his obligations under an otherwise
unenforceable contract, were allowed to recover from the minor any
money or property transferred to him under the contract. For example,
in the case of trading contracts where the adult party has already paid
for goods which the minor has failed or refused to deliver, the former
should have some recourse to the law to recover what he has paid or
property representing it. 173 Such discretion would enable the courts,
in appropriate cases, to protect the interests of the adult party who has
dealt with the minor in good faith.
Conversely, the court's discretion could also be exercised to allow the
minor who decides to repudiate a contract, to recover money paid or
property transferred to the adult party, where it would be fair and
reasonable to do so. 174 To ensure fairness in each case, the courts
could be given the latitude to vary the original terms of the contract
and impose additional terms in making such recovery or restitution
orders. For example, the court could be empowered to fix more flexible
There are also other perhaps less overt indications in the Constitution
which seem to support the contention that the State considers its
protective function to be generally limited to persons aged 18 years or
younger. In Article 14(1)(C), the Constitution States, with regard to the
protection of the right of personal liberty, that depriving a person
below the age of 18 years of his personal liberty for the purpose of
education or welfare would not constitute a violation of his
fundamental right. This would seem to suggest that the State's duty to
protect or sanction the protection of the young persons for their own
welfare extends to persons aged up to 18 years, but not normally
beyond that. It is also significant to note that the right of a young
person to be legally protected from exploitative work that endangers
his health, education or development also applies to persons below the
age of 18 years. 182 Equally significant is the legislative position on
the cut-off age of the child with regard to the parental duty of
maintenance. The Children's Act 183 stipulates that the duty of a
parent to maintain his child continues until the child attains the age of
18 years, except in situations where the child is still enrolled in an
educational institution and not gainfully employed, in which case the
duty could extend beyond that. 184
With regard to certain powers of considerable magnitude and
significance, the legislative consensus appears to be that a person of
18 years and older is capable of exercising the judgement and
discretion required. Significant examples include the power to make a
will to determine the mode of distribution of a person's self acquired
property and the right to obtain a driver's licence for a private vehicle.
185 Further, the law stipulates that the minimum age for marriage is
18 years, 186 signifying paradoxically, that an eighteen year old
person is considered mature enough to get married, but incapable of
assuming responsibility for his contractual indiscretions.
In view of this emerging trend a strong case can be made for the
reduction of the present age of majority for contractual purposes to 18
years. This is desirable, not only to ensure the harmonisation of the
law, but is even more urgent in view of the extent of protection
granted under the present State of the law on contractual capacity. In
short, such protection translates to overprotection for persons who are
closer to the age of majority. For such persons, the strict limitations
imposed on their contractual capacity is difficult to justify, and tends to
be unduly restrictive of their freedom to contract and participate fully
in business activity.
CONCLUSION
139. See, High Court Procedure Rules, 1954 (LN 140N, Order 16 Rules
14. 18 &19). See also, First Ghana Building Society v. Addy [1982-83]
G. L. R. 1089.
140. Cowern v. Nield [1912] 2 K.B. 419. 422: Lowe v. Griffiths (1835) 1
Scott 458: Re Jones ex. P. Jones (1881) 18 Ch. D. 120
141. See, Article 28(5) of the Constitution & section 32 of the
Interpretation Act, 1960 C.A. 4.
142. See, Henry v. Root 33 N.Y. 526, 538 (1865).
143. Necessaries" are defined in section 2(3) of the Sale of Goods Act.
1962 (Act 137) as "goods and services suitable to the condition in life
of the person to whom they are delivered and to his actual
requirements at the time of delivery". See also: Chappel v. Cooper
(1844) 13 M & W 252. 258 (per Alderson B).
144. See Miles (1927) 43 L.Q.R. 389. where the writer observes that
there are no decided cases in which the courts recognised an infant's
liability in an executory contract for necessaries, which are goods. See
also Cheshire, Fifoot and Firmston's Law of Contract. 13th ed (1991). pp
430-1.
145. See, Pontypridd Union v. Drew [1927] 1 K.B. 214. 220.
146. See, per Fletcher Moulton LJ. in Nash v. Inman [1908] 2 K.B. 1,8.
147. See Section 2(3) of the Sale of Goods Act. 1962 (Act 137).
148. See. Golf & Jones. The Law of Restitution 3d ed.. London, Sweet &
Maxwell. (1986) pp 426-7. 'See also, Fawcett v. Smethurst (1814) 84
L.J.K.B. 473; Clements v. L. & N. W. Ry. [1894] 2 Q.B. 482.
149. See Roberts v. Gray [1913] 1 K.B. 520, 530, where Hamilton LJ
Stated:
I am unable to appreciate why a contract which is in itself binding,
because it is a contract for necessaries not qualified by unreasonable
terms, can cease to be binding merely because it is still executory... If
the contract is binding at all, it must be binding for all such remedies
as are appropriate to the breach of it.
See also, Stocks v. Wilson [1913] 2 K.B. 235, 242 (per Lush J): Doyle v.
White City Stadium
162. Cf Yeboa, Civil Rights and Obligations of the Child, in, The Right of
the Child In Ghana: Perspectives, Mensa-Bonsu H.J.A.N. & DowuonaHammond C. (eds), Woeli Publishers, Accra. (1994) pp 76-77.
163. See, Davies v. Benyon-Harris [1931] 47 T.L.R 424. which affirms
that an infant does have capacity to enter into a contract for a lease.
And see, Lartey v. Bannerman [1972] 2 G.L.R 438, 442-3.
164. Street on Torts. 8TH ed., London, Butterworths (1988) p 522:
Defries v. Davis (1835) 1 Scott 594.
165. See, Charbonneau v. MacRury 84 NH 501; 153A 457 (1931).
166. See, Burnard v. Haggis (1863) 14 C.B.N.S. 45; According to Lord
Sumner in R. Leslie v. Sheill [1914] 3 K.B. 607. 612. "it was thought
necessary to safeguard the weakness of infants at large, even though
here and there a juvenile knave slipped through." 166
167. See. Jennings v Rundall (1799) 8 Term Rep. 335. Fawcett v.
Smethurst (1814) 84 L.J.K.B. 473. and Ballet v. Mingay [1943] K.B. 281
168. Earl of Buckinghamshire v. Drury (1761) 2 Ed. 60.71. per Lord
Hardwicke.
169. See. R. Leslie Ltd v. Sheill [ 1914] 3 K.B. 607, at p. 618. (Per Lord
Sumer) :
.......... When an infant obtained an advantage by falsely stating himself
to be of full age, the equity required him to restore his ill-gotten gains,
or to release the party deceived from obligations or acts in law induced
by the fraud, but scrupulously stopped short of enforcing against him a
contractual obligation entered into while he was an infant, even by
means of a fraud .......... Restitution stopped where repayment began.
170. Ibid.
171. See, Nash v. Inman, supra; Ryder v. Wombwell (1868) L.R. 3 Ex.
90; affirmed (1869 L.R. 4 Ex. 32; Mercantile Union Guarantee
Corporation v. Ball, supra.
172. See, Cheshire. Fifoot & Furmston's Law of Contract. 12th ed., p
452.
173. See. This is the approach applied in section 3 of the Minors'
Contracts Act of England, 1987. See also. Bartlett v. Bailey 59 N. H. 408