It is known that a Minor Child, who is any person under the age of 18, does not have the capacity to enter into a legally binding contract unless this is done so with the assistance of their guardian. This means that if a Minor Child enters into a contract without the assistance of a guardian, the Minor Child cannot be held liable in terms of the contract.

This is not to say however, that the position is the same for the other Party. If the other contracting Party performs in terms of the contract, he is not in a position to compel the Minor Child to perform according to his obligation. Further, the other contracting Party cannot recover his performance from the Minor Child.

The amount of enrichment that may be claimed from the Minor Child by way of an Enrichment Application may only be the amount that the Minor Child is still enriched by at the time the proceeding is instituted. In other words, let’s say that the Minor Child is paid R100 in terms of a contract, the Minor Child refuses to perform and subsequently spends R75 of it. The Enrichment Action can only be used to recover the remaining R25 by which the Minor Child is still enriched; the R75 must then be recovered by way of a delictual claim.

This seems quite unfair, but the above does not say that there is no claim at all against the Minor Child. As a Minor Child does not have the capacity to enter into a contract, no contract came into existence. According to common law, the correct claim against the Minor Child would be that of Unjustified Enrichment.

As stated before, this is the position in common law. The position has, over time, evolved and developed into what is used in practise today.

South Africa’s current position is that a contract that has been entered into by a Minor Child without the necessary assistance is enforceable or voidable by the Minor Child. In other words, the contract may be enforced by the Minor Child (with the necessary assistance) only if the Minor Child is willing to perform in full. This means that a valid contract has been entered into, however it is not enforceable by the other contracting Party. It is only the Minor Child who has the power (with the necessary assistance) to enforce or rescind the contract.

The moment the Minor Child rescinds the contract, the contract becomes void ab initio. The Minor Child may then reclaim any property delivered with the rei vindicatio action since the Minor Child has no capacity to alienate property, and may reclaim any money paid by way of condictio to the extent that the other Party has been enriched.

Should there be a scenario where the Minor Child has not enforced nor rescinded the contract, and the other contracting Party has already performed, the Minor Child would have been unjustifiably enriched at the expense of the other contracting Party.

The correct action to use in this scenario is still unclear due to the fact that the Courts have not been tasked with answering such a question as yet and it is therefore unknown if they would be willing to introduce an exception to the usual actions against such enrichment.

It is clear however, that should an enrichment action be given, the enrichment will still be calculated as at the date upon which the action was instituted as is the position in common law.

Duncan O’Connor

Candidate Attorney