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GAZETTE
DECEMBER 1978
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.
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
"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
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