(ii) Equitable Wrongdoing
Where the restitutionary claim is founded on an equitable wrong the fact that the defendant is a minor is no defence.1
Where the defendant has profited from the commission of a crime he or she should be required to disgorge any benefits derived from that crime by virtue of the principle that no criminal should be allowed to profit from a crime. This principle is so fundamental to the law of restitution that the defendant should be required to disgorge the profit even though he or she was a minor.
(iv) Breach of Contract
Where the restitutionary claim is founded on the defendant’s breach of contract, the fact that the defendant is a minor will be a relevant consideration because the policy of the law of contract should prevail even though the claimant seeks a restitutionary remedy. Since a contract is unenforceable against a minor it should follow that, where the minor breaches the contract, he or she cannot be considered to have committed a wrong. Consequently, if no wrong has been committed, there is no scope for the claimant to bring a restitutionary claim founded on restitution for wrongs. Here the defendant’s minority does not operate as a defence to the claim; it simply prevents the claimant from establishing that claim in the first place.
It follows that the defendant’s minority should not operate as a defence to a restitutionary claim where that claim is founded on the commission of a wrong. But it is important to ensure that the award of a restitutionary remedy does not unduly prejudice the defendant. The mechanism for this is through the flexible application of the defence of change of position, through reduced emphasis on the fact that the defendant was a wrongdoer.
(C) RESTITUTIONARY CLAIMS FOUNDED ON THE VINDICATION OF PROPERTY RIGHTS
Although in principle if the claimant wishes to recover property from the defendant it should be irrelevant that the defendant was a minor when he or she received the property, the defendant’s minority must be taken into account when the property has been transferred under a contract. This is because, by virtue of section 3(1) of the Minors’ Contracts Act 1987, the court has discretion as to whether the claimant can recover his or her property from such a defendant where it considers it to be just and equitable that a restitutionary remedy should be available. It follows that the law contemplates that the claimant will be able to vindicate his or her proprietary rights against a minor, although the claimant does not have a right to a restitutionary remedy, since the award of the remedy lies in the discretion of the court.