Emancipation
TOPIC 6 – MINORITY: EMANCIPATION
1. RELEVANCE TO THE CONTRACTUAL CAPACITY OF A MINOR:
A contract is assisted when (and ensuing legal consequences):
Informed consent (Baddeley and Van Dyk);
Ratification (Oberholzer); and
Emancipation (Ahmed v Coovadia, Grand Prix Motors v Swart, Sesing v Minister of Police, and Dickens v Daley).
2. EMANCIPATION/THE EMANCIPATED MINOR:
Guardian grants freedom to independently enter into contracts – release from parental authority in relation to contracts and incurs contractual liability (Dickens v Daley) (similar to assisted contract but not only one – consent to do a lot of things and more general).
For example: ‘freedom of action with regard to mode of living and earning his livelihood’ (absolute emancipation) or ‘freedom to conclude contracts related to their own business, but nothing else’ (relative emancipation).
Emancipation only affects contractual capacity and not status.
Scope of emancipation (extent of minor’s contractual independence):
Absolute or relative emancipation? Case law undecided but Heaton and Barratt et al adopts modern approach and depends on circumstances (what did guardian consent to?)
Important to note: only ‘assisted’ if minor acted within scope of emancipation.
Ahmed v Coovadia: where a guardian permits his minor to carry on own business or work for an employer of his own choice, the guardian impliedly consents to the minor making contracts in connection with the business or employment, but not other kinds of contracts – study in detail.
The guardian’s consent:
Emancipation requires actual and active consent in the sense that the guardians must apply their minds.
It does not suffice to show that guardian has abandoned the minor, or ceased to display any interest in his affairs, or that the minor regards himself completely free from his guardian’s control. Such minors still require the protection of the law and their contracts should not be treated as assisted.
Grand Prix Motors v Swart –
1. RELEVANCE TO THE CONTRACTUAL CAPACITY OF A MINOR:
A contract is assisted when (and ensuing legal consequences):
Informed consent (Baddeley and Van Dyk);
Ratification (Oberholzer); and
Emancipation (Ahmed v Coovadia, Grand Prix Motors v Swart, Sesing v Minister of Police, and Dickens v Daley).
2. EMANCIPATION/THE EMANCIPATED MINOR:
Guardian grants freedom to independently enter into contracts – release from parental authority in relation to contracts and incurs contractual liability (Dickens v Daley) (similar to assisted contract but not only one – consent to do a lot of things and more general).
For example: ‘freedom of action with regard to mode of living and earning his livelihood’ (absolute emancipation) or ‘freedom to conclude contracts related to their own business, but nothing else’ (relative emancipation).
Emancipation only affects contractual capacity and not status.
Scope of emancipation (extent of minor’s contractual independence):
Absolute or relative emancipation? Case law undecided but Heaton and Barratt et al adopts modern approach and depends on circumstances (what did guardian consent to?)
Important to note: only ‘assisted’ if minor acted within scope of emancipation.
Ahmed v Coovadia: where a guardian permits his minor to carry on own business or work for an employer of his own choice, the guardian impliedly consents to the minor making contracts in connection with the business or employment, but not other kinds of contracts – study in detail.
The guardian’s consent:
Emancipation requires actual and active consent in the sense that the guardians must apply their minds.
It does not suffice to show that guardian has abandoned the minor, or ceased to display any interest in his affairs, or that the minor regards himself completely free from his guardian’s control. Such minors still require the protection of the law and their contracts should not be treated as assisted.
Grand Prix Motors v Swart –