The next branch of the subject relates to the parties to the contract. Now, this you will at once perceive, involves a double consideration.
First, regarding the ability of the parties to the contract to contract at all.
Secondly, regarding their ability to enter into this or that particular sort of contract; for (as I shall have to explain more at length to you) there are persons who are allowed by the law to contract, but are not allowed to contract in the same way as an ordinary individual; for instance, a corporation may contract by deed, but cannot, except in certain cases which I shall presently specify, contract in any other manner.1 However, although these two considerations are in themselves distinct, yet I think the better and more intelligible plan will be to deal with both of them together, specifying one by one, those classes of persons regarding whose power to contract the law contains any particular provisions, and pointing out, while treating upon each of them, in what cases they are disabled from entering into any contract, and in what cases, although allowed *to contract, they are obliged to do so in a particular form.
Now, I need hardly tell you that, 'prima facie any subject of the realm has power to enter into any contract not rendered illegal by the provisions of the statute or common law; and, therefore, the cases to which i I am now to advert are cases of complete or partial disability, cases in which a contract, which would have been good if entered into by an ordinary individual, is, when entered into by some particular individual, invalid, because that individual happens to fall within a class of persons who either do not possess ability to contract at all, or do not possess ability to contract in that particular way.
1 Vide infra, pp. *370 et seq. and notes.
The first of these classes of persons to which I shall advert, is that of Infants.
The general principle which regulates this branch of the law is, that until an individual has attained the age of twenty-one, which period the law has selected as that at which a person of average capacity may fairly be supposed to have attained sufficient experience to render his natural faculties fully available in the practical business of the world, it is necessary to shield him from the dangers of becoming a prey to others willing to take an advantage of his inexperience; and as there are no means of doing this except by placing him under a limited disability to contract, he is accordingly placed under such limited disability. But *inasmuch as to place him under a total disability might have the effect of preventing him from attaining objects not only not detrimental, but of the utmost advantage to him, he is, in order to avoid this risk, permitted to bind himself to a certain extent, since otherwise he might be unable to obtain food, clothes, or education, though certain to possess at no very distant period the means of amply paying for them all.
The general principle therefore is, that an infant may bind himself by a contract for what the law considers necessaries, but not by any other contract. We will consider, therefore, what it is that the law comprises under this denomination.
Now, it is well established by the decisions, that under the denomination necessaries fall not only the food, clothes, and lodging necessary to the actual support of life, but likewise means of education suitable to the infant's degree, and all those accommodations, conveniences, and even matters of taste, which the usages of society for the time being render proper and conformable to a person in the rank in which the infant moves. The question what is conformable-what is, in the legal sense of the word, necessary-is, in each case, to be decided by a jury; but these are the principles by which the judge ought to direct the jury that their decision should in each particular case be guided. Though however the question of "necessaries" or "not necessaries" is one of fact and therefore for the *jury; yet like all other questions of fact, it should not be left to the jury by the judge unless there is evidence on which they can reasonably find in the affirmative. If there is not, the judge ought to withdraw the question from the jury (a).1 It is impossible, however, to understand this subject practically, so as to be able to say with tolerable certainty what would be the decision on this or that particular case, except by a familiarity with similar ones. I will therefore refer you to a number of decided cases, containing, in my judgment, the best illustrations of the matter.
(a) Ryder v. Wombwell, L. R., 4 Ex. 32; 38 L. J. (Ex.) 8 (Ex. Ch.) reversing S C, 3 L. R., Ex. 90; 37 L. J. (Ex.) 48.
1 In a very learned modern work on contracts the law on this point is thus clearly summarized: " When it is sought to enforce a contract against an infant on the ground that it was for necessaries, then the prima facie necessity of the commodities supplied is a question for the court. If the court holds then not prima facie necessary, evidence may be given of special circumstances rendering them in fact necessary, and the sufficiency or otherwise of such evidence is a question for the court. Subject as above, the necessity of the commodities in fact is a questson for the jury. Commodities of a description in itself necessary are [probably] not necessaries when the buyer is already supplied with as much of the like commodities as he can reasonably want." Pollock on Contracts, 52. In view of the subsequent case of Barnes v. Toye, 13 Q. B. D. 410 (infra p. *315 and note), the qualifying word inserted in the last sentence may be omitted, at least so far as the English law is concerned.
The two cases of Peters v. Fleming (b), and Harrison v. Fane (c), in one of which the infant was held liable, and in the other not, appear to me to furnish good examples of the distinctions of which I am speaking.