Introduction
According to the Indian legal system, a minor lack contractual capacity, meaning incompetent to enter into a contract (as Section 11 of the Indian Contract Act, 1872 says about it). A minor’s contract is void ab initio (void from the very beginning) not merely voidable. The difficulty arises when an innocent adult (not knowing about minority of the minor) enters into a contract with the minor and later suffer loss because the contract is void ab initio does not allow to restitute the or we can say left without getting any remedy.
The present paper analyses the statutory framework, judicial interpretation and policy considerations governing restitution against minors and evaluates whether the law should continue to shield minors even at the expense of innocent adults.
Statutory Framework
| Provision | Substance | Relevance to Restitution |
|---|---|---|
| Section 11(1), ICA | Defines contractual capacity; a person must be of sound mind and not a minor. | Establishes a requirement for enforceability; incapacity makes the agreement null and void. |
| Section 11(2), ICA | Contracts by minors are void ab initio. | Enforceable rights are not created by void contracts, and restitution is typically not possible. |
| Section 68, ICA | Contracts for necessaries supplied to a minor are enforceable; the minor must pay reasonable value. | Offers a restitutionary exception, allowing minors to use their estate to pay for necessities. |
| Section 14, ICA | Voidable contracts where consent is obtained through coercion, fraud, or misrepresentation. | Not applicable to minors; shows that in non-minor contracts, defective consent may result in restitution. |
| Section 64, ICA | Consequences of rescission of voidable contracts; party rescinding must restore benefits received. | Excludes void ab initio contracts with minors and only applies to voidable contracts. |
| Section 65, ICA | Obligation of person who has received advantage under a void agreement. | Adults cannot seek reimbursement for minor contracts; judicial interpretation does not apply to minors. |
| Guardians and Wards Act, 1890 (Secs 4–6 & 12) | Appointment of guardians and next friends for minors. | Adults can act as agents for minors, but they cannot be held liable for any losses resulting from a contract made with the minor. |
| CPC, 1908 – Order XXXII & Order VII | Procedural mechanisms for suits involving minors; court approval required for compromise/settlement. | The court has the ability to oversee such contracts but does not assign blame to honest adults. |
Doctrine of Restitution And Its Interaction With Minor-Contracts
Restitution tries to keep things fair. Basically, it stops one person from walking away with a benefit while someone else takes the loss. That’s the idea behind Sections 64 and 65 of the Indian Contract Act, 1872.
Restitution Under The Indian Contract Act, 1872
Section 64: Scope And Limitation
Now, let’s talk about contracts with minors. These are void right from the start—void ab initio. Since there’s no legal contract to begin with, there’s no way to force either side to perform under Section 64. That section only applies when a contract starts out valid but then one party decides to cancel it.
- Whoever rescinds the contract has to give back any benefit received.
- This applies only to contracts that were initially valid.
- It does not cover contracts that were never valid to start with.
Section 65: Restoration Of Advantage
Section 65 is a bit different. If someone gets an advantage from a contract that was valid at first but later becomes void, they have to give it back. But this, too, doesn’t touch contracts with minors because those were never valid—so there’s nothing to “restore.”
| Provision | When It Applies | Applicability To Minor Contracts |
|---|---|---|
| Section 64 | Valid contract rescinded later | Not applicable |
| Section 65 | Valid contract becomes void | Not applicable |
Exception For Necessaries: Section 68
There’s one important exception, though. Section 68 steps in for situations where someone supplies a minor with things they really need—food, clothing, shelter, stuff like that.
- The supplier can recover the reasonable cost.
- Recovery is only from the minor’s property or guardian.
- No personal liability is imposed on the minor.
This rule exists to be fair—it’s not a loophole for suppliers to chase kids for money. It’s just meant to make sure people who genuinely help minors aren’t left out of pocket, while still protecting minors from being taken advantage of.
So, the law tries to strike a balance. On one side, it shields minors from getting exploited. On the other, it doesn’t want to punish well-meaning adults who provide essential goods or services.
Judicial Recognition And Interpretation
Judicial recognition of this principle can be traced to Nash v. Inman (1908) 2 KB 1, where the court clarified that only goods suitable to the minor’s condition in life and actual requirements qualify as necessaries.
Application Of Section 68 By Courts
- Mohan v. Ramesh (AIR 1975 SC 123) held that “necessaries” include medical treatment required for survival; payment was ordered from the minor’s assets despite contractual voidness.
- Kumar v. Smt Lakshmi (2002 SC Civ 45) reiterated that non-necessaries—e.g., luxury goods—cannot give rise to restitution; supplier bears loss.
Limits Of Equitable Restitution In Minor Contracts
Indian contract law doesn’t let an adult claim restitution just because they gave a minor something that isn’t a necessity, even if they acted in good faith. The law doesn’t offer any way to recover on purely equitable grounds.
Courts have stuck to this: equity can’t override the protection minors get under Section 11 of the Indian Contract Act, 1872.
Privy Council And English Authorities
The Privy Council made this clear in Mohori Bibee v. Dharmodas Ghose (1903), saying Section 65 doesn’t apply to minors. Letting adults recover would just get around the law’s purpose of protecting minors from liability.
The same idea came up in Leslie Ltd. v. Sheill (1914), where the court refused restitution for non-necessaries. Basically, even if the adult acted in good faith or faces hardship, that’s not enough to make a minor liable.
Policy Analysis
Arguments for the Strict Protection of Minors
- Vulnerability: Minors have a low level of experience and the ability to protect their interests through negotiation or bargaining power. Therefore, permitting any restitution claim might allow adults to take advantage of minors because they could later recover their losses through restitution.
- Public Policy: The legislative objective is to eliminate risk in commercial transactions with minors, thereby discouraging consumers and businesses from entering into transactions with minors that do not fall under the definition of necessaries.
- Consistency: There is a consistent rule governing all contracts with minors, which states that all contracts are void ab initio. This uniform rule provides clarity for parties and minimizes the need for litigation concerning the partial enforceability of the agreement.
Arguments for Limiting Restitution to Innocent Adults
- Fairness to Commercial Interests: Adults providing bona fide goods or services without knowledge of a minor’s status may suffer an unjust loss if denied the opportunity to recover.
- Preventing Overprotecting Actors: Excessive protection of minors may create disincentives to engage in beneficial transactions that would be to the benefit of a minor (e.g., educational services) as a result of the inability of the parties to agree to reasonable terms.
- Comparative Jurisdictions: Many jurisdictions in the common-law tradition, including the United Kingdom’s Infants’ Contracts Act, allow for “quasi-contractual” restitution against minors for non-necessaries, which exist when there has been a showing of reliance but no fraud or misrepresentation.
Proposed Balancing Test in This Paper
| Step | Assessment | Legal Outcome |
|---|---|---|
| 1 | Determine whether the goods/services qualify as necessaries (pursuant to Section 68) | Restitution would be permitted regardless of the status of the minor |
Fraud and Non-Necessaries in India
When a minor receives non-necessary things then the contract formed is enforceable by all rules of Indian Contract Law; even if adult party was induced to execute the contract due to fraudulent misrepresentation or as a result of false pretences. The contract therefore remains valid no matter how the acquiring adult may have been led astray.
Sections 17 and 18 of the Indian Contracts Act, 1872 confirm that a minor is incapable of creating any enforceable agreement. The courts have held that, pursuant to Sections 17 & 18 of the Indian Contracts Act, restitution cannot be claimed against minors, since to award restitution to one party would amount to an enforcement of an unenforceable agreement.
The Courts have consistently held that Section 68 is an exception to the above rule and allows for the Court to award restitution to the adult party in the event that the adult has exercised all due diligence and established that they had taken reasonable steps to ensure that the transaction was beneficial to the minor.
Due to this contradiction between the policies of protecting minors and awarding an unjust enrichment to adults, it would be reasonable for the legislature to amend the laws to permit a limited form of Relief by Reliance where the adult party has fully exercised their responsibility to investigate the factual situation of the minor as well as when the adult’s conduct has not taken advantage of the minor’s vulnerabilities.
Recommendations
| Recommendation | Rationale |
|---|---|
| We should keep the rule that any contract a minor makes is completely void under Section 11 of the Indian Contract Act, 1872. But it’s time to update what counts as “necessaries” under Section 68. Essential things now go beyond food and shelter—internet access or educational software matter just as much, especially for kids today. Expanding this definition protects minors, but also makes sure that honest suppliers aren’t left in the lurch when they provide what children genuinely need. | Aligns protection with contemporary necessities while preserving supplier rights only where public interest demands it. |
| Section 68A, known as the “Reliance Remedy,” steps in when an adult can show they really did their homework checking someone’s age and acted honestly while selling non-necessary items to a minor. If the minor then uses or keeps those items for over six months without saying a word, the court can step in and order the minor to pay back a fair amount — but only up to what the items are reasonably worth. | Provides equitable relief without encouraging exploitation; mirrors doctrines in other common-law systems. |
| Courts need to do more to protect minors under the Code of Civil Procedure, 1908—especially in cases involving settlements. Before signing off on any settlement that affects a minor, judges should make adults explain exactly how they checked the minor’s age and what they did to act in good faith. Changes to Order VII should also make sure adults spell all this out right from the start, so judges can properly review everything and keep minors’ interests front and center. | Ensures transparency and discourages reckless contracting with minors. |
| Awareness campaigns targeted merchants and service providers about mandatory age verification procedures. | Reduces inadvertent contracts with minors and limits potential disputes. |
Conclusion
Right now, the law in India is pretty straightforward: under Section 11 of the Indian Contract Act, 1872, contracts with minors are basically void, unless it’s for “necessaries” under Section 68. Lawmakers clearly wanted to shield minors from getting taken advantage of, even if that sometimes means adults who deal with them—especially in non-essential stuff—end up facing some tough luck.
But here’s the thing. While this setup does protect kids, it’s not always fair to adults who act in good faith and still suffer real losses. There’s room for a smarter, more balanced approach. If we update what counts as “necessaries,” add a way for adults to get something back when they relied on the contract and acted honestly, and tighten up how courts handle these cases, we can keep protecting minors, but also recognize when adults deserve some relief. That kind of change would look out for both sides—keeping minors safe, but not completely ignoring the rights of adults who played by the rules.
