Contracting with Minors? Not Possible… Right?

Contracting with Minors? Not Possible… Right?


For years it has been common cause that an individual is required to have legal capacity in order to perform particular juristic acts in terms of the law. Legal capacity enables an individual to independently (without the assistance of a parent, guardian or person of sound mind) enter into a legally valid transactions, this is according to Hoosen 2015.

It involves a sound mental state which under normal circumstances is linked to age.

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Mental capacity and maturity

Generally speaking, in terms of the common law minors (under the age of 18 years) are classified into two categories. This is based on the level of mental capacity to distinguish between right and wrong and further the maturity to act in accordance with that distinction.

The first category is for minors younger than seven years of age while you are presumed to lack contractual capacity and can’t contract even with assistance.

The second, on the other hand, deals with Minors between the ages of seven and 18 years who are presumed to have limited contractual capacity and can contract generally speaking with assistance.

Upholding a contract

The Consumer Protection Act (CPA) 68 of 2008 provides a legislative framework aiming to create a fair and accessible marketplace for all consumers in South Africa. Section 39 may purport to incorporate these common law contractual principles.

It provides for the limited contractual capacity of mentally ill persons and minors. Also the use of the word voidable in subsection 1(b) suggests that a minor may elect whether or not to uphold a contract.

Subsection 2, on the other hand, has the effect of voiding a contract if a minor misrepresents him or herself and misleading a supplier resulting in the supplier acting to their own detriment.

Hoosen also states that the uncertainty with regard to the application of subsection 2 may result in an unfair outcome should the matter be heard in court. Her suggestion is that the court should hold a minor liable for fraud if the minor’s appearance was similar to the misrepresented age or if the supplier could not reasonably determine the minor’s true age.

Selling to minors

This particular section is poorly drafted and subsections and seems to pose some practical difficulties when attempting to interpret the section holistically. The consumer protection act does not define a minor or by what attributes they are to be identified.

Additionally, the question needs to be asked whether or not a suppliers should service a minor particularly under the age of seven years through their pocket money transactions or refuse them?

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It seems unconstitutional and unfair, in my view to simply refuse a minor without any further consideration. It does unarguably though, pose a serious risk particularly until clarifications been obtained, to suppliers whose business may require making these decisions on a regular basis.

It is recommended that suppliers whose nature of business may involve transacting with minors seek legal advice to appropriately minimise or avoid risk.

Nicolene Schoeman-Louw
Nicolene Schoeman – Louw is an admitted attorney of the High Court of South Africa, as well as being a Conveyancer, Notary Public and Mediator. She is the Managing Director of Schoemanlaw Inc Attorneys, Conveyancers and Notaries Public (Schoemanlaw Inc Attorneys) in Cape Town. Visit for more information or email