Capacity of Minor’s Contracts under the Contract Act in Pakistan: A Critical Appraisal

Abstract

According to Section 10 of the Contract Act, 1872 (CA), an agreement concluded by the parties is only enforceable where the consent of the parties is free with their competence. Section 11 indicates that minors lack the legal competence to enter into contracts. CA specifically highlight the effects if the contract is entered into by the vitiating factor provided under sections 19, 19A and 20 but does not suggest any inference about the contracts of minors. In this regard the Privy Council (PC) in its verdict of Mohori Bibee v. Dharmodas Ghose answer this proposition and interpreted the CA and declared that contracts by the minors are ab initio void neither the contracts are void nor voidable. As to this interpretation contracts of minors cannot be enforced against them and nobody can claim restitution under section 64 as voidable contract and under section 65 as void contract. Since the courts accepted the above interpreted rule in stricto meaning as unquestionable. This article suggests that the PC’s interpretation in the Mohori Bibee (MB) case of CA is problematic, and its creation of new type of contract as void ab initio is not supported by CA. Embargo on the minors to contract or seek remedy need urgent judicial reinterpretation or reforms in legislation in Pakistan. In this paper doctrinal methodology is applied.