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ABSTRACT
While contracts by minors are generally voidable in most common law jurisdictions, the apex court in India and in Malaysia has each held that such contracts are void ab initio, following a century-old Privy Council decision in Mohori Bibee (1903) 30 ILR Cal 539. This article explores minors’ contracts through the lens of legal transplant—viewing transplanted laws on a continuum, from a ‘Strong Watson’ perspective where English common law was adopted by the Indian courts, to a ‘Weak Watson’ position following the Privy Council’s interpretation of the law in the Indian Contract Act 1872. The authors conclude that the current Weak Watson transplant of laws on minors’ contracts is a ‘misfitted’ transplant which is neither consistent with the original intent of the transplanted law nor fit for purpose in a modern context. Given minors’ inability to enter into contracts or seek remedies, urgent legislative reform or judicial reinterpretation is required in India and Malaysia.
Notes
1 Alan Watson, Legal Transplants: An Approach to Comparative Law (2nd edn, University of Georgia Press 1993) 21.
2 William Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’ (1995) 43 American Journal of Comparative Law 489.
3 Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences’ (1998) 61 Modern Law Review 11, 12.
4 Pierre Legrand, ‘The Impossibility of “Legal Transplants”’ (1997) 4 Maastricht Journal of European and Comparative Law 111, 116–17.
5 Teubner (n 3) 16–17.
6 Ewald (n 2) 490, 492.
7 Catherine Valcke, ‘Comparative Law as Comparative Jurisprudence—The Comparability of Legal Systems’ (2003) 52 American Journal of Comparative Law 713, 716–17.
8 Mathias Siems, Comparative Law (2nd edn, Cambridge University Press 2018) 231: ‘[T]he policy recommendations of the traditional approach [to comparative law] can involve the recommendation of legal transplantation as “applied comparative law”.’
9 The MCA was modelled upon the ICA. Except for the renumbering of some provisions, the sections in the MCA are in pari materia with the ICA. In terms of legislative history, the ICA was extended to the Federated Malay States (comprising Pahang, Perak, Selangor, and Negeri Sembilan) by the Contract Enactment 1899. In the Unfederated Malay States (Johore, Perak, Kedah, Perlis, and Kelantan), except for the state of Johore, there was no attempt to introduce the Contract Enactment. Consequently, the ICA was extended to these states through the Contracts (Malay States) Ordinance 1950 which thereafter governed all the Malay States. This Ordinance was revised in 1974 and enacted as the Contracts Act 1950 (Revised 1974), which was extended to Penang, Malacca, Sabah, and Sarawak. Prior to this, English principles of contract law applied to the Straits Settlements of Penang and Malacca (together with Singapore). Before the formation of Malaysia in 1963, the common law applied to Sabah through the Civil Law Ordinance 1938, and to Sarawak by virtue of the Law of Sarawak Ordinance 1928. See Visu Sinnadurai, Law of Contract, Volume One (3rd edn, LexisNexis Butterworths 2003) 3–10.
10 (1903) 30 ILR Cal 539 (Privy Council of the United Kingdom (UKPC)), on appeal from the High Court of Calcutta, India.
11 In Mohori Bibee (n 10) 547–48, Sir Ford North delivering the judgment of the Judicial Committee stated that ‘a person, who by reason of infancy is incompetent to contract, cannot make a contract within the meaning of the Act’. The Privy Council’s decision that contracts with minors do not exist and are absolutely void has been described as ‘void ab initio’ in judicial decisions and scholarly literature. See also Shivprasad Swaminathan and Ragini Surana, ‘Minors’ Contracts: A Major Problem with the Indian Contract Act, 1872’ (2021) 42 Statute Law Review 101, 108–12 that the Privy Council’s view that minors’ contract were void ab initio (not voidable or void) meant that neither party could enforce it, nor could they seek to be restituted to their original positions under provisions stipulating restitution for voidable contracts (ICA, s 64) or for void contracts (ICA, s 65).
12 Southerton v Whitlock (1725) 2 Strange 690 (King’s Bench Division of the High Court of England and Wales (EWKB)); Zouch, Ex Dimiss Abbot and Hallet v Parsons (1765) 3 Burr 1794 (EWKB); Roberts v Gray (1913) 1 KB 520 (Court of Appeal of England and Wales). See Law Commission (England and Wales), Law of Contract: Minors’ Contract (Law Com No 134, 1984) paras 1.5, 1.12 on the principle of ‘qualified unenforceability’, that minors’ contracts are enforceable by, but not against, the minor. See also HJ Hartwig, ‘Infants’ Contracts in English Law: With Commonwealth and European Comparisons’ (1966) 15 International and Comparative Law Quarterly 780, 821–22: save for contracts wholly beneficial to an infant and contracts for necessaries, an infant has an absolute right to repudiate a contract.
13 Adopting Ewald’s observation of the ‘two souls’ dwelling within Watson in Ewald (n 2) 491, 494: Strong Watson asserts that ‘comparative law is equivalent to the study of legal transplants’, while Weak Watson is more conciliatory, that ‘comparative law should be centrally (but not exclusively) concerned with the study of legal transplants’.
14 MP Jain, ‘The Law of Contract before its Codification’ (1872) Journal of the Indian Law Institute 178, 189–90. See also J Duncan M Derrett, ‘Justice, Equity and Good Conscience’ in JND Anderson (ed), Changing Law in Developing Countries (Routledge, 1963) 114.
15 Jain (n 14) 199.
16 Mohori Bibee (n 10) 550.
17 Mathias M Siems, ‘The Curious Case of Overfitting Legal Transplants’ in Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke (Hart Publishing 2014) 133, 138–39.
18 The divergence in Mohori Bibee from the common law position was unexpected given Britain’s unified imperial policy of applying English law and the Privy Council’s role as a supranational tribunal to preserve the unity of the common law in the colonies. See Justice Logan, ‘An Australian Perspective on the Removal of Appeals to the Judicial Committee of the Privy Council’ (2016) 4 Caribbean Journal of International Relations & Diplomacy 19, 32.
19 See Teubner (n 3) 32.
20 See TT Arvind, ‘The “Transplant Effect” in Harmonization’ (2010) 59 International and Comparative Law Quarterly 65, 78.
21 There are however exceptions to the unenforceability of contracts by minors decided in Mohori Bibee. An exception is contracts of marriage entered into by minors (Fernandes v Gonsalves (1924) 48 ILR Bom 673 (High Court of Bombay (HC, Bombay)); Rajeswary v Balakrishnan (1958) 3 Malayan Cases 178 (High Court of Malaya (HC, Malaya)); see SK Chan, ‘Minor’s Capacity to Sue for Breach of Promise of Marriage’ (1961) 3 Malaya Law Review 127. In Malaysia, Rajeswary v Balakrishnan must now be read in the light of s 10 of the Law Reform (Marriage and Divorce) Act 1976 that provides that ‘any marriage purported to be solemnised in Malaysia shall be void if at the date of marriage either party is under the age of eighteen years’. There is provision (s 21(2)) for a female who has completed her 16th year to apply for a licence granted by the Chief Minister authorising the solemnisation of the marriage. The Act recognises marriages conducted under native customary laws in Sabah and Sarawak. The Act is also inapplicable to a Muslim or any person who is married under Muslim Law. Statutes have been enacted that allow minors to work or enter apprenticeship agreements: for India, see Apprenticeship Act 1961, which allows guardians to enter apprenticeship agreements on behalf of minors, and Child and Adolescent Labour (Prohibition and Regulation) Act 1986; for Malaysia, see Children and Young Persons (Employment) Act 1966. See also legislation enabling guardians to deal with the property of minors: for India, see Guardian and Wards Act 1890 and Hindu Minority and Guardianship Act 1956; for Malaysia, see Guardianship of Infants Act 1961.
22 In India, the decision in Mohori Bibee has been applied in the following contracts by minors: Jagar Nath Singh v Lalta Prasad (1909) 31 ILR All 21 (High Court of Allahabad (HC, Allahabad)) (sales contracts); Sew Sankar Lal v Bejoy Krishna AIR 1953 Cal 218 (High Court of Calcutta (HC, Calcutta)) (leases); Sanyasi Charan Mandal v Krishnadhan Banerji (1922) 49 ILR Cal 560 (UKPC) (partnership contracts); Raj Rani v Prem Adib (1949) 51 Bom LR 256 (HC, Bombay) (service contracts). In Malaysia, the decision in Mohori Bibee has been applied in the following categories of contracts by minors: Government of Malaysia v Gurcharan Singh & Ors [1971] MLJ 211 (HC, Malaya) (scholarship agreement before the amendment to the MCA in 1976); Tan Hee Juan by his next friend Tan See Bok v The Boon Keat Lai Soon [1934] 3 MLJ 96 (HC, Malaya), Leha Binte Jusoh v Awang Johari Bin Hashim [1978] 1 MLJ 202 (Federal Court of Malaysia), and Mohd Ali Jahn bin Yusop Sahibjahn v Zaleha Bt Mat Zin [1995] 1 Current Law Journal 533 (HC, Malaya) (contracts for sale and purchase of land).
23 ICA, s 64 (MCA, s 65 is exactly the same):
When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is promisor. The party rescinding a voidable contract shall, if he has received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received.
When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.
24 Alan Watson, ‘The Birth of Legal Transplants’ (2013) 41 Georgia Journal of International and Comparative Law 605, 607.
25 Different statutory models are available, eg, the comprehensive Minors (Property and Contracts) Act 1970 (NSW) in Australia; David J Harland, The Law of Minors in Relation to Contracts and Property, An Analysis of the Minors (Property and Contracts) Act 1970 (NSW) (Butterworths 1974). In 2010, the Australian Law Reform Commission (ALRC) recommended that legislation similar to this Act should be adopted on a national basis for young persons aged 16 and 17: see ALRC, Seen and heard: priority for children in the legal process (ALRC No 84, 2010) para 11.10, rec 52. See also Shivangi Gangwar, ‘Minors Contracts in the Digital Age’ (2022) Liverpool Law Review 237, 257, who proposes the South African model which allows minors limited contractual liability with parental consent. See also n 156 where Xanthaki proposes a careful formulation of an appropriate ‘Transplant Concept’ when borrowing legislations.
26 Shaun Star and Divyangana Dhankar, ‘Major Differences in Minors’ Contracts: A Comparative Analysis into the Validity of Contracts with Minors in the Sport and Entertainment Industry’ (2022) 43 Liverpool Law Review 203, 204.
27 Leha Binte Jusoh (n 22).
28 Watson (n 1) 95.
29 See, among Watson’s critics, Otto Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 Modern Law Review 1; Teuber (n 3); Legrand (n 4).
30 See Ewald (n 2) 494. Kahn-Freund also uses the concept of a continuum: the (organismic) kidney and the (mechanistic) carburettor being the terminal points wherein ‘any given legal rule or institution may be found at a different point of it’, and in relation to the transplantation or transfer of foreign institutions, ‘as a class they belong to neither.’: Kahn-Freund (n 29) 5, 6.
31 BH McPherson, The Reception of English Law Abroad (Supreme Court of Queensland Library 2007) 30. This doctrine was approved by the Privy Council under the title Anonymous (1722) 2 PWMS 75.
32 Watson (n 1) 30.
33 William Twining, ‘Diffusion of Law: A Global Perspective’ (2004) 36 The Journal of Legal Pluralism and Unofficial Law 1, 22.
34 ibid 27: ‘In colonial times, imported law was primarily seen as an instrument of social control and exploitation by the colonial power.’
35 Ronald J Daniels, Michael J Trebilcock, and Lindsey D Carson, ‘The Legacy of Empire: The Common Law Inheritance and Commitments to Legality in Former British Colonies’ (2011) 59 American Journal of Comparative Law 111, 164–65.
36 George Townsend Warner, Sir Henry K Marten, and D Erskine Muir, The New Groundwork of British History (Blackie & Son Limited 1943) 639.
37 Rupert Emerson, Malaysia: A Study in Direct and Indirect Rule (2nd edn, University of Malaya Press 1979) 92–94.
38 William Bolts, Considerations on India Affairs; Particularly Respecting the Present State of Bengal and its Dependencies (2nd edn, J Almon 1772) 76.
39 (1774) 98 ER 1045 (EWKB). See, generally, MB Hooker, Towards a Legal History of Southeast Asia (Kuala Lumpur Malaysian Branch of the Royal Asiatic Society 1978).
40 Except for inheritance, marriage, and religious usage, in accordance with Bengal Judicial Regulation 1781, ss 60, 93.
41 Vivian Bose, ‘The Migration of the Common Law: India’ (1960) 76 Law Quarterly Review 39, 62.
42 Affirmed in Ong Cheng Neo v Yeap Cheng Neo and Others (1872) LR 6 PC 381 (UKPC).
43 Emerson (n 37) 94.
44 JN Matson, ‘The Common Law Abroad: English and Indigenous Laws in the British Commonwealth’ (1993) 42 International and Comparative Law Quarterly 753, 762.
45 Upon independence, Malaysia and Singapore enacted statutes for the reception of English law. See Civil Law Act 1956 (Malaysia); Civil Law Act (1988 rev edn); Application of English Law Act 1993 (Singapore). For India, see the Indian Constitution, art 372(1), which provides for the continuance of the existing law until it is ‘altered, repealed or amended by a competent Legislature’.
46 Larry A DiMatteo, ‘Deconstructing the Myth of the “Infancy Law Doctrine”: From Incapacity to Accountability’ (1994) 21 Ohio Northern University Law Review 481, 484; RS Pandey, ‘Minors Agreements in India and the U.K.—A Comparative Survey’ (1972) Journal of the Indian Law Institute 205, 211.
47 HL Deb 2 December 1986, vol 482, cols 709–13, speech by the Lord Chancellor (Lord Hailsham of Saint Marylebone) at the second reading of the Minors’ Contracts Bill.
48 Samuel Hopgood Hart, ‘The Liability of Infants with Respect to their Contracts’ (1889) 11 Law Students’ Journal 64.
49 Maddon, Executors of John Baker Deceased v George White (1787) 2 Term Reports 159 (EWKB).
50 Frederick Pollock and Dinshah Fardunji Mulla, The Indian Contract Act with a Commentary, Critical and Explanatory (Sweet & Maxwell 1905) 49.
51 (1869) 3 BLR AC 426 (HC, Calcutta).
52 (1885) 11 ILR Cal 552 (HC, Calcutta).
53 Charles Greenstreet Addison, A Treatise on the Law of Contracts, and Rights and Liabilities ex contractu (3rd edn, Stevens and Norton Law Booksellers 1853) 169.
54 (1891) 18 ILR Cal 259 (HC, Calcutta).
55 The judgment cited KM Chatterjea, The Law Relating to the Transfer of Immoveable Property, inter vivos: with an Appendix Containing the Transfer of Property Act, being Act IV of 1882 (Thacker, Spink, & Co 1890) 146.
56 Citing Boiddonath Dey v Ram Kishore Dey (1870) 13 WR 166 (HC, Calcutta); Doorga Churn Saha v Ram Narain Doss (1870) 13 WR 172 (HC, Calcutta); Rennie v Gunga Narain Chowdhry (1865) 3 WR 10 (HC, Calcutta); and Hari Ram (n 51).
57 Warren Swain, ‘Codification of Contract Law: Some Lessons From History’ (2012) 31 University of Queensland Law Journal 39, 46–47. See also Herbert J Liebesny, review of Sir George Claus Rankin, Background to Indian Law (Cambridge University Press 1946) (1947) 1 The Middle East Journal 108, that the codification however was not achieved without problems in light of the ‘variety of legal systems, chiefly those of the Hindus and Moslems’ in superimposing a ‘European (English) legal system upon an Oriental one’.
58 The ICA, widely acknowledged as a successful codification of English contract law, was also adopted in other parts of the Indian Sub-Continent (Pakistan and Bangladesh) and Brunei. See RR Sethu, ‘The History, Impact and Influence of the Indian Contract Act 1872’ (2011) 28 Journal of Contract Law 31.
59 MS Amos, ‘The Legal Mind’ (1933) 49 Law Quarterly Review 27, 34.
60 Jain (n 14) 199.
61 See Stelios Tofaris, ‘Trust Law Goes East: The Transplantation of Trust Law in India and Beyond’ (2015) 36 Journal of Legal History 299, 327: ‘legislative transplantation as remedial to judicial transplantation’ is one reason for transplants.
62 Pollock and Mulla (n 50) v.
63 Gail Pearson, ‘The Resignation of The Third Indian Law Commission: Who Makes Law?’ (2020) 4 Adelaide Law Review 575, 576.
64 Atul Chandra Patra, ‘Historical Background of The Indian Contract Act, 1872’ (1962) 4 Journal of the Indian Law Institute 373, 395.
65 Whitley Stokes, The Anglo-Indian Codes (vol 1, Clarendon Press 1887–88) xxi – xxii.
66 House of Commons (UK), ‘Forwarding Draft Bill on the Subject of Contracts—Legislative dispatch from the Government of India dated 16th August (No. 4) 1867’, Accounts and Parl Paper vol 49 (Session 19 November 1867–31 July 1868) 86–87.
67 ibid 50. See also Pollock and Mulla (n 50) v.
68 ibid 55–56.
69 Under the Draft Bill, vitiating factors for lack of free consent were provided in cl 8 (deceit, coercion, and undue influence) and cl 9 (false representation), rendering contracts voidable at the option of the affected party. The equivalent provisions in the ICA are s 19 (coercion, fraud, and misrepresentation) and s 19A (undue influence). Sections 19 and 19A of the ICA provide that an agreement is a contract voidable at the option of the party whose consent was so caused.
70 It incorporated cl 13 of the Draft Bill that refers to an engagement being accorded validity if there was valid object or consideration, see House of Commons (UK), ‘Forwarding Draft Bill on the Subject of Contracts’ (n 66) 55.
71 In Rohilkhand and Kumaun Bank Limited v Row (1884) 7 ILR All 490 (HC, Allahabad), the Court held that Indian subjects were governed by personal laws in relation to the age of majority—Hindu law for the Hindus and Islamic law for the Muslims. When the Indian Majority Act 1875 came into effect (after the ICA), it applied to govern the age of majority of all Indian subjects.
72 Cl 5 provides the following: ‘Every person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may enter into a contract’ (emphasis added).
73 Pollock and Mulla (n 50) 49.
74 ibid.
75 See text under n 69.
76 Hari Ram (n 51).
77 Sashi Bhusan Dutt (n 52).
78 Saraswati Debya (n 54).
79 Completed in 1862, it was pioneered by its chief draftsman, David Dudley Field, a Manhattan trial lawyer. The New York Draft Code (also known as the Civil Code of the State of New York) was one of three codes on substantive law (the other two being the Political Code and the Penal Code) that Field and Commissioners of the Code were tasked to draft by the Act of 1857. The Civil Code had four general divisions relating to (i) persons (inter alia, on adults, minors, persons of unsound mind), (ii) property, (iii) obligations, and (iv) general provisions relating to the above different subjects. The Codes on Civil and Criminal Procedure were completed and submitted prior to this. See The Civil Code of the State of New York: Reported Complete by the Commissioners of the Code (Weed, Parsons & Co, Printers 1865) i–ix.
80 GC Rankin, Background to Indian Law (Cambridge University Press 1946) 101.
81 CP Ilbert, ‘In Memoriam Sir James Stephen as a Legislator’ (1894) 10 Law Quarterly Review 222, 223.
82 Pollock and Mulla (n 50) v. According to Sir Frederick Pollock, the clauses on fraud and misrepresentation (ICA, ss 17, 18) ‘which are rather worse, if anything, than the average badness of the whole—were most unfortunately adopted in the Indian Contract Act’.
83 D Sutherland, The Indian Contract Act (Act IX of 1872) and The Specific Relief Act (Act I of 1877) with a Full Commentary (Thacker, Spink, & Co 1879) 15, 16. The provisions in the Civil Code of the State of New York read as follows: s 745: ‘It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient consideration’; s 756: ‘All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights’. See The Civil Code of the State of New York (n 79) 223–24.
84 Similar to the English position on the voidability of minors’ contracts, s 16 of the Civil Code provides that a minor ‘may’ make a conveyance or a contract as any other person subject to the power of disaffirmance. The use of the term ‘may’ in the Civil Code suggests that minors were to have discretion in entering contracts and that minors’ contracts were voidable as opposed to absolutely void. Further, s 17 of the Civil Code provides for a minor to disaffirm the contract before reaching the age of majority or within a reasonable time afterwards, except in two circumstances, namely, first, contracts for necessaries for himself or his family (s 18) and secondly, an obligation, otherwise valid, entered by him under express authority or direction of a statute (s 19). See The Civil Code of the State of New York (n 79) 4–5.
85 The German and the Italian commercial codes had an impact on the law of partnership, see House of Commons (UK), ‘Second Report on the Substantive Law for India’, Accounts and Parl Paper vol 49 (Session 19 November 1867–31 July 1868) 3, 6.
86 See House of Commons (UK) ‘Forwarding Draft Bill on the Subject of Contracts’ (n 66) 5, for provisions on the discharge of a surety which followed Italian and French codes.
87 Abhinav Chandrachud, ‘Summaries and Secondary Evidence: Transnational Legislative Borrowing in Colonial India’ (2017) 10 NUJS Law Review 83, 86; Leslie Stephens, The Life of Sir James Fitzjames Stephen (Smith, Elder & Co 1895) 276.
88 KJM Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (Cambridge University Press 1988) 128.
89 Pollock and Mulla (n 50) v.
90 See text accompanying n 66.
91 Pollock and Mulla (n 50) 49.
92 RN Gooderson, ‘English Contract Problems in Indian Code and Case Law’ (1958) 16 Cambridge Law Journal 67, 79–80.
93 Hartwig (n 12) 823.
94 Mohori Bibee (n 10) 548: ‘The question whether a contract is void or voidable presupposes the existence of a contract … and cannot arise in the case of an infant.’
95 House of Commons (UK), ‘Second Report on the Substantive Law for India’ (n 85) 3–4.
96 House of Commons (UK), ‘Forwarding Draft Bill on the Subject of Contracts’ (n 66) 86–87.
97 ibid 86–87. This proposal was set out in s 128 of the Draft Bill: ‘An agreement between the creditor and the principal, by which the creditor makes a composition with, or agrees to give time to, or not to sue, the principal, discharges the surety’. This provision is now provided in s 135 of the ICA: ‘A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract … ’.
98 J Duncan M Derrett, Essays in Classical and Modern Hindu Law, Volume One (EJ Brill 1976) 418. According to Derrett, the ICA (s 135) diverges from Hindu law in providing that a surety is discharged if the third party acts in a manner which is inconsistent with the rights of the surety or omits to perform acts which the surety requires the creditor to perform. Under ancient Hindu law, the agreement would not be terminated by such conduct.
99 J Duncan M Derrett, ‘The Role of Roman Law and Continental Laws in India’ (1959) 24 Zeitschrift für ausländisches und internationales Privatrecht 657, 663.
100 Francisca Vicario Bermúdez, ‘Legal Transplantation and Commercial Law Reform in the Field of Rule-of-Law Promotion’ (2017) 8 Queen Mary Law Journal 139, 147.
101 Brohmo Dutt v Dharmo Das Ghose (1898) 26 ILR Cal 381, 384 (HC, Calcutta). On appeal to the Privy Council, the case was reported as Mohori Bibee v Dharmodas Ghose (n 10) as the mortgagee had died and the action was continued by his administratrix, Mohori Bibee.
102 Bromo Dutt (n 101) 385–87. The knowledge of the mortgagee’s attorney was imputed to the mortgagee: 387–88. On this basis, the Court also declined to exercise the discretion under ss 28 and 41 of the Specific Relief Act to order the minor to return the monies for the loan: 389–90.
103 Bromo Dutt (n 101) 388. On appeal, the Privy Council declined to decide on this issue and held that s 115 of the Evidence Act does not apply to the present case where the statement relied on was made to a person who was not misled by the untrue statement: Mohori Bibee (n 10) 545–46.
104 Bromo Dutt (n 101) 389.
105 The appellants (the mortgagee) argued that the High Court ought not to have decreed in the respondent’s (the mortgagor) favour without ordering the repayment of the sum of Rs. 10, 500 paid to the mortgagor in consideration for the mortgage: Mohori Bibee (n 10) 546.
106 Mohori Bibee (n 10) 548.
107 ICA, s 2(e): ‘Every promise and every set of promises, forming the consideration for each other, is an agreement’; s 2(g): ‘An agreement not enforceable by law is said to be void’; 2(h): ‘An agreement enforceable by law is a contract’; s 2(i): ‘An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract’.
108 See text accompanying n 9.
109 Andrew Harding, ‘Global Doctrine and Local Knowledge: Law in South East Asia’ (2002) 51 International and Comparative Law Quarterly 35, 41, 45, adopting Watson’s rather than Montesquieu’s view that ‘legal systems are constructed out of, and develop through, legal transplantation’.
110 [1903] AC 6 (UK House of Lords).
111 ibid at 10 (Earl of Halsbury LC).
112 Pollock and Mulla (n 50): ‘These enactments [the IRA], of course, have no authority in India, and can be referred to only for the purpose of illustrating the common law rules’.
113 Mohori Bibee (n 10) 550.
114 See text accompanying n 23.
115 Mohori Bibee (n 10) 548. For criticisms of the decision that an agreement is ‘void’ or ‘discovered to be void’ even though the invalidity arises due to incompetency to form the contract, and the recommendation to add an explanation in s 65 to provide for restitution where a minor entered the contract by falsely representing that he is a major without the other party’s knowledge of the minor’s incompetency, see Law Commission of India, Thirteenth Report: Contract Act 1872 (Ministry of Law, Government of India 1958) paras 37, 86.
116 (2015) 5 SCC 622 (Supreme Court of India).
117 ibid 634–35.
118 (1917) ILR 40 Mad 308 (High Court of Madras).
119 Wallis CJ held that under s 6 of the Transfer of Property Act 1882, property may be transferred to a minor as he is not ‘a person legally disqualified to be a transferee’ within the meaning of the Act. Further, highlighting the distinction between recognising a transfer while accepting the invalidity of contracts by minors (in Mohori Bibee), Wallis CJ stated: ‘The provision of law which renders minors incompetent to bind themselves by contract was enacted in their favour and for their protection, and it would be a strange consequence of this legislation if they are to take nothing under transfers in consideration of which they have parted their money.’ (emphasis added): ibid 313–14.
120 Mathai Mathai (n 116) 635.
121 See Ajudhia Prasad v Chandan Lal AIR 1937 All 610 (HC, Allahabad) which clarified that since contracts by minors were void from the start, they differed from agreements ‘discovered to be void’ or ‘when a contract becomes void’ under s 65 of the ICA. This distinction is to avoid acknowledging contracts by minors may be valid at some point and only subsequently become void.
122 While the Indian courts are open to quasi-contractual remedies, eg, under s 70 of the ICA (for compensation or restoration by a person enjoying the benefit of a non-gratuitous act), this section applied only to executed contracts. In Raj Rani v Prem Adib (n 22 at 264), the High Court of Bombay declined to award damages to a child artist alleging wrongful termination of contract by a film producer despite the child’s willingness to complete her obligation and the fact that the contract was for her benefit. The Court held that the contract was void ab initio. The Court also declined to grant a remedy under s 70, which was inapplicable to the executory portion of a service contract as in the facts of this case.
123 Suraj Narain Dube v Sukhu Aheer AIR 1928 All 440 (HC, Allahabad).
124 Valcke (n 7).
125 DiMatteo (n 46).
126 For India, see Pandey (n 46); for Malaysia, see Syed Ahmad SA Alsagoff, ‘The Capacity of Minors to Enter into Contracts: A Comparative Study on the Approaches Taken by Shariah, English and Malaysian Laws’ [2019] 5 Malayan Law Journal lxii: ‘In the case of minors, the Shariah, English and Malaysian laws’ objectives and approaches are generally similar. They protect the minor from consequences of contracts that are not beneficial to them due to their inexperience or improvidence.’
127 Mohd Ali Jahn bin Yusop Sahibjahn v Zaleha Bt Mat Zin (n 22) 535.
128 See (n 22).
129 Malaysian Specific Relief Act 1950, s 41 grants courts discretionary power to order a party seeking the cancellation of an instrument to make compensation to the other party as justice requires.
130 Tan Hee Juan (n 22) 98 (emphasis added).
131 Anthony Kronman, ‘Paternalism and the Law of Contract’ (1983) 92 Yale Law Journal 763, 764; Duncan Kennedy, ‘Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power’ (1982) 41 Maryland Law Review 563, 581–82.
132 Gangwar (n 25) 238.
133 UNICEF-India, ‘General Country Profile’ (UNICEF 2022) <www.unicef.org/rosa/media/10566/file/India.pdf> accessed 22 February 2023.
134 Rhonda Gay Hartman, ‘Adolescent Autonomy: Clarifying an Ageless Conundrum’ (2000) 51 Hastings Law Journal 1265, 1301–05: comparing ‘the antiquated age demarcation of contract law, which assumes decisional inability for minors under eighteen years of age’ with tort law that recognises adolescent decisional capability to engage in, and be accountable for, particular activities when those activities cause injury to another.
135 Jennifer A Drobac and Oliver R Goodenough, ‘Exposing the Myth of Consent’ (2015) 12 Indiana Health Law Review 471, 477. See also Grace Icenogle and others, ‘Adolescents’ cognitive capacity reaches adult levels prior to their psychosocial maturity: Evidence for a “maturity gap” in a multinational, cross-sectional sample’ (2019) 43 Law and Human Behaviour 69.
136 Juanda Lowder Daniel, ‘Virtually Mature: Examining the Policy of Minors’ Incapacity to Contract through the Cyberspace’ (2007/08) 43 Gonzaga Law Review 239, 244.
137 Steven Wolfe, ‘A Reevaluation of the Contractual Rights of Minors’ (1988) 57 University of Missouri at Kansas City Law Review 145, 147.
138 Walter D Navin Jr, ‘The Contracts of Minors from the Perspective of Fair Exchange’ (1972) 50 North Carolina Law Review 517. See also Robert G Edge, ‘Voidability of Minors Contracts: A Feudal Doctrine in a Modern Economy’ (1967) 1 Georgia Law Review 205. On criminal and tort liabilities of minors, see Daniel (n 136) 262–65, Kate Fitz-Gibbon, ‘Protections for children before the law: An empirical analysis of the age of criminal responsibility, the abolition of doli incapax and the merits of a developmental immaturity defence in England and Wales’ (2016) 16 Criminology and Criminal Justice 391.
139 See Gangwar (n 25); Shaun Star and Nirav Bakshi, ‘The growth of esports in India—a short review of the main legal and regulatory challenges’ (LawInSport, 3 April 2019), <www.lawinsport.com/topics/anti-doping/item/the-growth-of-esports-in-india-a-short-review-of-the-main-legal-and-regulatory-challenges> accessed 22 February 2023.
140 Arvind (n 20) 78. Arvind cites ignorance of formal and informal institutions of the original jurisdiction which causes transplanted laws to diverge significantly from the original. In relation to Mohori Bibee, ignorance of local (Hindu) law contributed to the Privy Council decision diverging from English common law.
141 Bernard S Cohn, ‘From Indian Status to British Contract’ (1961) 21 The Journal of Economic History 613, 614.
142 See text accompanying n 54–56. Although the Privy Council did not consider Muslim law to affect a significant segment of the Indian population, the position would have been similar. While Muslim law prohibits infants from dealing with their property, dispositions which are beneficial by an infant mumeyyiz who shows understanding of selling and buying are valid, see The Mejelle: Being an English Translation of Majallahel-Ahkam-I-Adliya and a Complete Code on Islamic Civil Law (Law Publishing Company 1967) 151.
143 Hari Ram (n 51); Sashi Bhusan Dutt (n 52); Saraswati Debya (n 54).
144 Arvind (n 20) 82.
145 Joshua Getzler, ‘Transplantation and Mutation in Anglo-American Trust Law’ (2009) 10 Theoretical Inquiries in Law 355, 362–63.
146 Mindy Chen-Wishart, ‘Legal Transplant and Undue Influence: Lost in Translation or A Working Misunderstanding?’ (2013) 62 International and Comparative Law Quarterly 1, 24.
147 ibid 14–22.
148 Mohori Bibee (n 10) 539.
149 Pearson (n 63) 581.
150 Mohori Bibee (n 10) 549.
151 Alan Watson, ‘Comparative Law and Legal Change’ (1978) 37 Cambridge Law Journal 313, 330.
152 James L Nolan Jr, ‘The Cultural Constraints of Legal Transplantation a Ten-Year Retrospective’ (2020) 21 Cardozo Journal of Conflict Resolution 641, 658.
153 See text accompanying n 12.
154 Borrowing of laws is not new to Malaysia including from European sources: see May Fong Cheong, Joshua Beni Teoh, and Esther Li Ean Khoo, ‘Legal Transplant: Giving Life to Malaysia’s Competition Regime’ in Steven Van Ulystel, Shuya Hayashi, and John O Haley (eds), Research Handbook on Asian Competition Law (Edward Elgar Publishing 2020) 181.
155 See text accompanying n 25. This is beyond the scope of this article and offers potential for further research to improve the plight of minors in India and Malaysia.
156 See Helen Xanthaki, ‘Legal Transplants in Legislation: Defusing the Trap’ (2008) 57 International and Comparative Law Quarterly 659, who emphasises the importance of formulating an appropriate ‘Transplant Concept’ and avoid subsequent problems of inapplicability of the transplanted law within the receiving national legal context.
Additional information
Notes on contributors
May Fong Cheong
May Fong Cheong is an Associate Professor at the School of Private and Commercial Law, Faculty of Law & Justice, UNSW Sydney, New South Wales, Australia. She is also an Adjunct Professor at the Faculty of Law, Multimedia University, Melaka, Malaysia.
Divyangana Dhankar
Divyangana Dhankar AGIA ACG is an Associate Professor at Jindal Global Law School, O.P. Jindal Global University, Haryana, India. She is also a John W. Graham Fellow and Harry W. Arthurs Fellow at Osgoode Hall Law School, York University, Canada.
Shaun Star
Shaun Star is a Professor and Associate Dean at Jindal Global Law School, O.P. Jindal Global University, Haryana, India.