One of the most essential elements of a valid contract is the competence of the parties to make a contract.
SECTION 10 : All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
SECTION 11 : Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
NECESSARIES
Necessaries does not mean bare necessities of life (that is food, cloth, shelter, etc.), but means such things as may be necessary to maintain a person ‘according to his conditions in life’ (that is his status and requirements). Thus it is to be determined with reference to fortune and circumstances of the particular minor. As the proper cultivation of the mind is as expedient as the support of the body, instruction in art or trade, or intellectual, moral and religious education may be necessary also.
Articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed. Further, what are ‘necessaries’ may depend upon the status of a person, and also his requirements at the time of actual delivery of the goods [CHAPPEL VERSES COOPER]. To render an infant’s estate liable for necessaries, two conditions must be satisfied (the onus is on the plaintiff to prove them),
- The contract must be for goods reasonably necessary for his support in his station in life, and
- He must not have already a sufficient supply of these necessaries at the time of sale and delivery .
In MOHIRI BIBEE VERSES DHARAM DAS GHOSE observed that, “It is clear from the Act that the (minor) is not to be liable even for necessaries, and that no demand in respect thereof is enforceable against him by law, though a Statutory claim is created against his property”. Section 68 of the Act provides, “If a person incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person ‘with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person”.
Thus a minor is not personally liable even for necessaries. The supplier can claim reimbursement out of property of the minor for necessaries supplied to an incapable person. Therefore a minor cannot be declared insolvent.
MINOR LIABILITIES FOR NECESSORIES
SECTION 68 of the Indian Contract Act, 1872 states that if a person does not have the capacity of being in a contract receives necessaries from another person. He has the power to reimburse from the incapable person. Though SECTION 68 makes minor liable for the necessaries, it does not define the necessaries. The necessaries will be decided upon the case. To have reimbursement for the necessaries the party supplying the necessaries must prove that the good and reasonable. They have also to confirm that the provided necessaries are the only support for the minor and that they do not have any sufficient supply with them.
ACCORDING TO SECTION 68 REIMBURSEMENT IS PERMITTED IF
- Necessaries are supplied.
- If necessaries are supplied to incompetent person, for example lunatic, minor or to their dependents.
- Reimbursement is permitted from the property of such incompetent person. No personal action lies against the minor or lunatic
CASE : NASH VERSES INMAN
In this case, a minor who was amply supplied with proper clothes according to his position, was supplied by the plaintiff with a number of dresses, including fancy waist coats. Held, that the plaintiff cannot recover price of dresses. However, in PETERS VERSES FLEMING, it was observed that an undergraduate at a college should have a watch.
THE FOLLOWING HAVE BEEN HELD TO BE ‘NECESSARIES’
- Supply of racing cycle for an infant apprentice.
- Debt incurred for performing the funeral rites of minor’s father.
- Funeral expenses of the husband by the infant widow [CHAPPEL VERSES COOPER].
- House given to a minor on rent for living and continuing his studies.
- Wedding presents for a bride of minor.
- Money advanced for defending criminal proceedings.
- Loan given to a minor on the mortgage of his property with a view to save that minor’s property from the execution of a decree.
But where a minor is engaged in trade, contracts entered into by him for trading purposes are not for necessaries and are not binding on him. It may be noted that the necessaries may be supplied to someone whom the minor is legally bound to support, such as his wife and children. Ornamental articles and diamonds are usually not considered necessaries even if the minor moves in a high society, unless the articles are especially necessary for the minor [Ryder Verses Wombell]. Further, certain things like earrings for a male, spectacles for a blind person, or a wild animal, cannot be considered as necessaries.
NATURE OF LIABILITY OF MINOR’S ESTATE FOR NECESSARIES
The liability does not depend upon the minor’s consent. It arises because the necessaries have been supplied to him and is, therefore, quasi-contractual in nature. The real foundation is an obligation, which the law imposes on the infant to make a fair payment in respect of needs satisfied. In other words, the obligation arises re and not consensu. Further, the liability is not personal, but is only that of the minor’s estate. Thus it has a little contractual element. Another view is that the liability is contractual. A contract for necessaries is just one of those categories of contracts which the minor is permitted to make.