(i) Tort

Where the defendant has obtained a benefit as a result of the commission of a wrong there is no reason why the fact that the defendant was a minor should defeat the restitutionary claim. A minor does not deserve particular protection against restitutionary claims where he or she has obtained a benefit as a result of wrongdoing. This has been recognized in a number of cases. For example, in Bristow v Eastman[1] the defendant was held liable for embezzling money from his employer. Here the underlying wrong was either the tort of conversion or of deceit. It was specifically held that minority was not a defence to this action, since the action was founded on the commission of a tort.

Where, however, the tort on which the claim is founded is connected with a contract made with a minor, it has been held that, because the contract is unenforceable, the action grounded on the tort will also be barred since if such a claim was allowed to succeed it would result in the indirect enforcement of the contract. This is illustrated by Stocks v Wilson[2] where the defendant, who was a minor, fraudulently misrepresented his age and consequently induced the claimant to sell and deliver to him furniture, paintings, and artefacts for ?300. The defendant sold some of these items and used the rest as security for a loan. The defendant failed to pay the claimant the agreed contract price. The claimant unsuccessfully sued the defendant for breach of contract because the contract was unenforceable as a result of the defendant’s minority. The claimant also sued the defendant for damages for deceit and this action also failed because the deceit related to the contract.

The reasoning of the judges in these cases is unconvincing because the remedy which the claimant sought was founded on tort and not contract. The fact that the tort related to the formation of the contract is irrelevant, particularly where the claimant seeks a restitutionary remedy, since the effect of this remedy is not to enforce any contract which was made as a result of the commission of the tort, but simply to deprive the defendant of any benefits obtained from the commission of the wrong.

  • [1] (1794) 1 Esp 171, 170 ER 317. 2 [1913] 2 KB 235. See also R Leslie Ltd v Shiell [1914] 3 KB 607.
  • [2] 15 Stocks v Wilson [1913] 2 KB 235.
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