By Raeesa Ebrahim Atkinson 

Family Law and Contract Law

According to the Children’s Act, 38 of 20051, all persons under eighteen are considered children. Therefore, they are considered minors, and their ability to conclude legal and contractual transactions is limited. 

Is a Contract Concluded by a Minor Legally Enforceable? 

As a general rule, minors do not have contractual capacity; therefore, any contracts concluded by a minor will be unenforceable against the minor from the onset but will be enforceable against the party that has contractual capacity.  

However, should the minor have permission from a parent or guardian prior to entering the contract, the contract may be enforceable subject to the other requirements of a valid contract being met. Furthermore, such contracts may be endorsed by a parent or guardian after their conclusion. 

Section 39 (1) (b) of the Consumer Protection Act 68 of 2008, as amended (“CPA”), indicates that contracts concluded by minors who are unemancipated where consent by a parent or guardian was not given are voidable. However, this section does not render the contract void from the onset. In fact it appears to indicate that the contract will be valid against the parties until such time that the contract has been rendered void. 

In saying that, however, Section: 39 (2) (a) & (b) of the CPA indicates that where a consumer induced the supplier to believe that it had contractual capacity or tried to conceal the fact that it did not have contractual capacity, Section 39 (1) will not apply.  

What Is An Emancipated Minor? 

Emancipation refers to instances where minors have obtained consent from a parent or guardian to engage in contractual transactions. This does not mean that the minor will be regarded as an adult.2 The minor will not be able to conclude a valid marriage or obtain legal capacity. 

Other factors which may be utilised as a basis for emancipation include whether the minor earns a salary or owns his/her own home. 

Conclusion 

In conclusion, contracts with minors are risky and should be avoided unless there is conclusive evidence that the minor has been emancipated. Contractual enforcement under circumstances where this is not clear could lead to unnecessary legal costs.  

Contact an attorney at SchoemanLaw inc for your family law and contractual needs by visiting our website at www.schoemanlaw.co.za.

Raeesa Ebrahim Atkinson | SchoemanLaw Inc

Specialist Attorney Civil Dispute Resolution
www.schoemanlaw.co.za