Minors
Cases
Keays v. Great Southern Railways Co.
[1941] I.R. 534
Hanna J.
An important point is raised in this case, namely, that by reason of the contract that was made by the railway company with the plaintiff, she is disentitled to maintain any action for injuries received through the negligence of the company’s servants. This matter has been decided forty-six years ago in Flower’s Case (3), and that decision has been accepted as the law, both in this country and in England, for that long period. It is a clear enunciation by eminent Judges that, in considering a contract of this kind made with an infant, the Court has to peruse and consider the entire contract to decide whether it is for the benefit of the infant.
An infant prima facie cannot make a contract, but an infant has certain rights in law, and a contract made by an infant is not in itself a void contract; it is only a voidable contract. That means that it is open to the infant at any time to repudiate the contract. In determining whether the contract is for the benefit of the infant, the Court must consider the contract as a whole. It is not sufficient that the infant gets some benefit from the contract. The Court has to take into consideration the obligations or limitations imposed by the Company on the natural or legal rights of the infant.
In this case, the benefit to the infant is to be carried for six shillings and three pence per month, but her common law rights are entirely wrested from her by the clauses in the contract, which prevent her from making a claim against the railway company for any injury she may sustain through any negligence on the part of the company, or the servants of the company. It goes even further: that, in the case of her death, her parents or representatives are prohibited by the terms of the contract from making a claim that might otherwise be sustainable. These conditions are contained in a large notice which is properly put up, both in Irish and English, somewhere in the booking office.
It is, to my mind, manifestly absurd to think that a school child, even of twelve years of age, and even of the intelligence of this young girl, should be expected to be aware of the limitation on her rights. This contract is not a contract made with her father or mother; it is a contract made with the child, and while it is a valid contract, and capable of being acted upon while in operation, it is the law that the child is entitled to repudiate it and to have determined by the Court whether a contract of this kind is for her benefit or not.
At first I thought this might be a serious matter for the railway company, but, apparently, all the railway companies have been quite satisfied for the past forty-six years to have the case of Flower v. London and North Western Railway Company (1) stand as law, and it is probably for this reason that the railway companies and their servants undoubtedly take very great care of children going to school, it may be that the railway companies are quite satisfied to allow the law to stand as it is, and in view of the rare cases in which children may be injured through the negligence of their servants, not to have the matter tested.
I am of opinion that the contract in this case is very unfair to the infant because it deprives her of practically every common law right that she has against the railway company in respect of the negligence of themselves or their servants. For that reason, I think it is not for her benefit, and accordingly, her case must go to the jury on ordinary principles of law, namely, whether the servants of the company were guilty of negligence, and whether there was any negligence on the part of the plaintiff.
The application for a direction will therefore be refused.
GEOGHEGAN J
My opinion in this case relates so closely to the particular facts before me that I feel it can have little value for any greyhound owner except the plaintiff.
The plaintiff was nine years of age at the time of the accident to her dog. Some time previously her father, Patrick Harnedy, had, according to himself, given the animal to her as a gift, and had registered it in her name. This piece of evidence is of substantial importance. There has been skilful cross-examination to elicit an admission that the dog remained the property of the plaintiff’s father, Patrick Harnedy, and that the plaintiff was a mere nominee on his behalf, but the plaintiff’s father was not shaken in his testimony that the dog was actually the property of the plaintiff. Therefore I find myself compelled to hold on the evidence presented here that at the time of the accident the infant plaintiff was the legal and beneficial owner of the dog, notwithstanding any instinctive feelings of my own as to the realities of the transaction between father and daughter.
Harmedy v. National Greyhound Racing Co., Ltd.
[1944] IR 160
Geoghegan J.
The terms of the contract are to be found on the face of the entry form, in the “Conditions of Sale” printed on the back, and on the front cover of the catalogue prepared by the defendants for the purpose of the sale.
The entry form declares that the defendants “accept no responsibility for accidents or disease-during trials or sales,”and the catalogue contains a similar provision together with a notice stating that “the National Greyhound Racing Co., Ltd., or the auctioneer accept no responsibility for loss or damage suffered or incurred whether from death, disease, accident or any other cause whatsoever to owners, trainers, or their charges during trials or sales.”
The entry form and the catalogue constitute the contract. The effect of the contract, if binding on the infant plaintiff, is to relieve the Company of all liability for negligence by its servants in connection with trials or sales of dogs held in pursuance of the contract. The comprehensiveness of the stipulation in the catalogue need not be stressed.
It follows that a person contracting with the defendants on this basis is deprived of certain rights which otherwise would be afforded to him by common law. Some of these rights might be of such a nature as to arise only in rare and unusual circumstances, but others might arise frequently. No doubt, an owner of a dog who sells the animal through the medium of the sales held by the defendants may obtain an enhanced price as compared with a sale by private negotiation or otherwise, but, in my opinion, the possible disadvantages from a legal standpoint flowing from the express terms of the contract to which I have adverted oblige me to disregard them as against this plaintiff, and to treat the special contract (taken as a whole) as one substantially to the detriment of the plaintiff. I must regard the sale as having been held on an open contract of employment affording no protection to the defendants against their common law liability for negligence.
In arriving at this conclusion I have followed the decisions in Keays v. Great Southern Railways Co. (1) and Flower v.London and North Western Railway Co. (2). I have dealt with the law point relied upon by the defendants. No point was taken as to the authority of the plaintiff’s father to offer for sale the plaintiff’s dog.
Turning to the evidence before me I have come to the conclusion that, while in the conduct of their business generally the defendants and their servants did their work with skill, knowledge, and consideration for those with whom they were dealing, there was negligence in the present instance. It has been established that on the occasion in question the dogs were prematurely released by reason of a defect in the mechanism of the traps, thereby creating the danger that some of the dogs might be attacked and bitten by others. The premature opening of the door of the trap was the effective cause of the accident. This constitutes negligence on the part of the defendants, for which they are answerable to the plaintiff.
As to the amount of damages: I feel great difficulty in arriving at anything more than an estimate which would be little better than conjecture. Having no clear reason for varying the sum awarded by the learned Circuit Court Judge I affirm the decree in the Court below, and
Proform Sports Management Ltd v Proactive Sports Management Ltd & Anor
[2006] EWHC 2903 [2007] 1 All ER 542, [2007] BusLR 93, [2007] 1 All ER (Comm) 356
Hodge QC
It then becomes necessary to consider the next stage in Mr. Joffe’s argument. He submits that the law as to minors’ contracts is correctly stated in Chitty on Contracts, 29th edition 2004, at paragraphs 8-004 to 8-005. Paragraph 8-004 identifies the only contracts which are binding on the minor as contracts for necessaries. However, a diversity of meanings has been given to the word “necessaries”. In one sense the term is confined to necessary goods and services supplied to the minor, but in another it extends to contracts for the minor’s benefit and in particular to contracts of apprenticeship, education and service. Paragraph 8-005 provides that apart from contracts for necessaries and contracts of apprenticeship education and service, the general rule at common law is that a minor’s contract is voidable at his option; i.e. not binding on the minor, but binding on the other party.
As to other beneficial contracts, Mr. Joffe relies on paragraph 8-028. I quote –
“The principle that contracts beneficial to a minor are binding on him is not confined to contracts for necessaries and contracts of employment, apprenticeship or education in a strict sense. It extends also to other contracts which in a broad sense may be treated as analogous to contracts of service, apprenticeship or education. So, for instance, a contract by a minor (who was a professional boxer) with the British Boxing Board of Control whereby he agreed to adhere to the rules of the Board was held binding on him because he could not have earned his living as a boxer without entering into the agreement.”
The authority cited is Doyle -v- White City Stadium Limited [1935] 1 KB 110.
“Similarly, it has been held that an agreement between a minor and a publisher for the publication of the minor’s biography which was to be written by a “ghost writer”, was binding on the minor.”
The authority cited is Chaplin -v- Leslie Frewin (Publishers) Limited [1966] Ch 71.
“So also, a contract between a group of under-age musicians (known as “The Kinks”) whereby they appointed a company as their manager and agent, was held binding as analogous to a contract of employment.”
The authority cited is the first instance decision in Denmark Productions Limited -v- Boscobel Productions Limited reported only at (1967) 111 Solicitors Journal 715 and reversed on other grounds by the Court of Appeal. The footnote goes on to contrast from that case the case of Shears -v- Mendeloff (1914) 30 TLR 342, where the contract contained oppressive terms and was void. The text goes on:
“On the other hand there is no general principle to the effect that any contract beneficial to a minor is binding on him. So a minor’s trading contracts are not binding on him, even if beneficial.”
Thus, two questions arise. First, whether the contract between Wayne Rooney and Proform falls within the class of contracts analogous to contracts for necessaries and contracts of employment, apprenticeship or education. If so, secondly, and only if the first question is answered in a positive sense, whether this particular contract was one which was beneficial to Wayne Rooney. Mr. Joffe submits that a contract analogous to one of apprenticeship, education or employment is only enforceable against a minor if it is of benefit to him at the time when he enters into it. Where the contract contains terms, some of which are beneficial to him and others not, the question is whether, taken as a whole, the contract is to his advantage. The burden of showing benefit is always on the party seeking to uphold the contract. At paragraph 31 of his written skeleton argument, Mr. Joffe poses the question whether the Proform agreement fell within the class of minors’ contracts which were analogous to those of apprenticeship, education and service. At sub-paragraph six he proposes a negative answer to that question. He says that Proform cannot show that the contract is so analogous. At the time when it was signed, Mr. Rooney was already with a club, Everton, that was providing him with training. He had no need for any training from Proform. He submits that the Proform agreement makes no provision for training, education or instruction in any way.
The absence of such provision was, he submits, the basis of the decision in Shears -v- Mendeloff that the contract could not be construed as one for necessaries. Shears -v- Mendeloff was of course the case before Avory J., where a minor who was a professional boxer had appointed the plaintiff his sole manager on commission and agreed not to take any engagements under any other management without the plaintiff’s consent for three years. Such a contract was held unenforceable against the infant, on the grounds that it was a trading contract, and also as one which could not be construed as being beneficial to him. Mr. Joffe contrasts such a case with the decision in Roberts -v- Gray [1913] 1 KB 520, where the infant had entered into a contract to go on a tour as a professional billiard player. That contract was held to be one for necessaries and for his benefit. The Court of Appeal held the contract to be binding on him as a whole. Mr. Joffe submits that the basis of the decision in that case was clearly that the contract could be construed as one for necessaries, because it was for teaching, instruction and employment. By contrast, he submits that the Proform agreement contains nothing which can be said to be analogous to instruction, education or training. Nor did the Proform agreement permit Mr. Rooney to make a start as a footballer or enable him to earn a living. It is on that basis that he distinguishes the cases of Chaplin -v- Leslie Frewin and Doyle -v- White City Stadium, which are authorities relied upon by Mr. King. Mr. Joffe submits that in those two cases the minor was enabled to earn a living by reason of a contract he entered into. That is not the position here. There was no payment being made to him. He was already contracted to Everton. That was all that he needed. He had no need of a contract to represent him as a professional footballer. He would on turning 17 be in a position to earn his living via a contract with Everton Football Club or any other club, and he had no need of an agreement with an agent to enable him to do so. Certainly he did not need to be bound to such an agent for two years. After all, he could not under the Football Association Rules sign a professional contract at the earliest until he was 17, assuming he was not then in full-time education; and he had no need of representation in his work as a professional footballer, as clause one of the Proform agreement stated.
Mr. King submits that the terms of the Proform contract speak for themselves. He relies upon the terms of Mr. McIntosh’s witness statement, which record that Proform was providing all the functions in respect of personal representation and management, advice and negotiation for the benefit of Wayne Rooney. That was intended to encompass all aspects of the services undertaken by the claimant for a player aged 17 years or under. He submits that the case falls squarely within the principle stated at paragraph 8-028 of Chitty, that contracts beneficial to a minor, and which can thus be upheld, are not confined to contracts for necessaries and contracts of employment, apprenticeship or education in a strict sense. They extend also to other contracts which in a broad sense may be treated as analogous to contracts of service, apprenticeship or education. In any event, he submits that the defendants cannot establish – and the burden is upon them -that the claimant has no real prospect at trial of bringing the agreement within these principles. Whether the agreement is within the same must, he submits, be a mixed question of construction and fact.
I am conscious that on this issue I have, as Mr. King submits, to be satisfied that the claimant has no real prospect of succeeding in establishing that the Proform agreement falls within the class of contracts analogous to those described as contracts for necessaries, contracts of employment, apprenticeship or education. Clearly Wayne Rooney’s agreement with Everton Football Club would fall squarely within the class of contracts identified at paragraph 8-028 of Chitty. However, it does seem to me that the same cannot be said of the Proform agreement. On the evidence, Mr. Rooney was already engaged with Everton. Under the terms of the Football Association rules, he could not enter into any contract of employment until he was 17, if then not in full-time education. Even if he entered into a contract with Everton when he was 17, that contract, if not for his benefit, would of course be voidable at his election. It does not seem to me that a contract in the terms of the Proform agreement, whereby Proform was to act as his executive agent and to carry out all the functions in respect of personal representation on behalf of his work as a professional football player, falls to be considered as analogous to the class of contracts considered at paragraph 8-028 of Chitty. As I say, Mr. Rooney was already with Everton on Mr. McIntosh’s own evidence, (see paragraph 18 of his witness statement). At this time, and indeed in 2002, Wayne Rooney only wanted to play for Everton; he did not wish to play for any other club. He was already doing so.
It does seem to me that the Proform agreement is much more analogous to the contract considered by Avory J. in Shears -v-Mendeloff than it is to the class of contract considered in cases such as Doyle -v- White City Stadium and Chaplin -v- Leslie Frewin and Denmark Productions -v- Boscobel Productions Limited. As Mr. Joffe submitted, music group mangers are very different from players’ representatives. Music group managers organise matters that are essential to the very business of the musical artiste. Players’ representatives do not undertake matters that are essential to the player’s training or his livelihood. They do not enable the minor to earn a living or to advance his skills as a professional footballer. In my judgment, cases such as Chaplin and Doyle make it clear that the basis of the class of analogous contracts is that the minor is entitled to earn his living or to start to do so. It does not seem to me that the Proform agreement is analogous to such a contract. I say that particularly bearing in mind the fact that, under the Football Association rules, no contract can be entered into by a player as young as Wayne Rooney then was. No contract could properly be entered into by him until a time less than two months before this representation agreement was due to expire; and even if entered into by Wayne Rooney at that time, it would have been voidable at his instance if not genuinely for his benefit. That would have continued to be so throughout the remaining short duration of the management and agency agreement. It seems to me that the Proform agreement is at one remove from the class of contract that has been treated in the authorities as being subject to the exception to the general voidability of minors’ contracts, applicable where such a contract is for the minor’s benefit. As paragraph 8-028 of Chitty makes clear, “A minor’s trading contracts are not binding on him, even if beneficial”. It seems to me that this case falls within the general principle that merely because a contract is beneficial to a minor, if such is the case, it is not binding on him unless it falls within a particular category.
So for those reasons, it seems to me that Mr. Joffe is correct in saying that the Proform agreement does not fall within the class of minors’ contracts which are analogous to contracts of apprenticeship, education and service. On that footing, it is unnecessary for me to consider the point that was addressed at length at paragraphs 32 through to 48 of Mr. Joffe’s skeleton argument, whether the Proform agreement was for Mr. Rooney’s benefit. Given that this is a summary judgment application, it seems to me that it would be undesirable for me to venture any expression of judicial opinion on that issue; and I do not propose to do so.
……
So to summarise:
(1) In my judgment there is no reasonable prospect of the claimant establishing at trial that the Proform agreement was a contract for necessaries or analogous to a contract of apprenticeship, education or service, so that as a matter of law it falls outside the general rule that contracts with minors are voidable.
(2) In the light of that holding, it is unnecessary for me to consider whether the Proform agreement was for the benefit of Wayne Rooney, so that as a matter of law it falls outside the general rule that contracts with minors are voidable. I am satisfied that Mr. Joffe is right in his submission that there can be no liability in tort, even if the defendants were responsible for procuring a breach of the Proform agreement, because, in my judgment, that agreement was voidable by Mr. Rooney.