LAW OF PERSONS AND THE FAMILY

CASE CHEAT SHEET

4. Minority

1. Baddeley v Clarke: the Court held that the guardian’s mere knowledge of his son’s possession of the motorbike did not
constitute ‘tacit consent’ as there was no evidence that he knew the ‘material terms’ of the contract (i.e. that they were
particularly onerous) and thus had not provided the minor with the requisite assistance.
2. Fouche v Battenhausen: the Court held that when the guardian knew the (i) type of contract, (ii) that it was part of a
trade-in agreement, (iii) the monthly repayment and other information, he was deemed to have given ‘informed consent’
and thus assisted the minor. The Court also held that the contract was prejudicial to the minor because (i) he could not
afford it, and (ii) he did not need it (it was for his father). The minor thus met the requirements for the restitutio because
he was a minor at the time of contracting and was assisted; the court however denied him the remedy because he had lied
about his age.
3. Van Dyk v SA R&H: the Court held that if the guardian had knowledge of the type of contract (i.e. employment). he did
not need to have specific knowledge of the terms if they were generally common to that kind of contract.
4. Edelstein v Edelstein: The Court (AD) held minor that unassisted minors are not bound by the contract and that these
contracts are ‘limping contracts’ (authority for this also comes from Voet). The Court also held that an unassisted minor
can ‘resile with impunity’ but that if he tries to enforce his contract he will implicitly ratify it.
5. Marshall v National Wool Industries: the Court held that it is always the minor that acquires the rights and obligations
under a contract, not the party providing assistance. The Court also held that when one person acts on behalf of another, in
relationship of agency, the agent never incurs rights or obligations; these fall on the principal who is then bound.
6. Wood v Davies: the Court held that an assisted minor who is bound by the contract has recourse to the restitutio when it
is inherently prejudicial to his interests. The court decided that the contract was prejudicial because (i) the liabilities were
large and continued into his majority, (ii) the object was overpriced (inherently a bad deal), and (iii) the minor did not
need the object (it was primarily for his family).
7. Skead v Colonial Banking: the Court held that a minor would only have recourse to the restitutio if the contract was
prejudicial to him at the time it was entered into. In this case it had only become prejudicial as a result of the ‘spendthrift’
conduct of the former minor.
8. Stuttaford & Co. v Oberholzer: the Court held that a minor did not need to expressly ratify his contract and could do so
through his conduct (such as riding a bike around the Western Cape, lending it to one’s brother or having it repaired).
9. Louw v M, J & H Trust: the Court held that the fraudulent minor was not entitled to the restitutio. However the court
held that an unassisted minor could not become contractually liable purely as a result of his being fraudulent by may be
liable ex delicta (in delict).
10. Dickens v Daley: Court held that the minor child, who was employed, paid board and lodging, operated his own bank
account, had applied for a passport and rejected his fathers guardianship was emancipated because his father had
abandoned his right of control.
11. Sesing v Minister of Police: the Court held that the neglect and abandonment of a minor by his guardian does not
constitute tacit consent as it would be grossly unfair to deprive a minor of his legal protection purely because of the failure
of his guardians.
12. Grand Prix Motors v Swart: the Court held that simply because the minor’s guardian had abandoned her did not mean
that she had been ‘tacitly emancipated’. The Court decided not to reduce the value of the minor’s claim on the basis that
she did not need the car and thus it technically fell into the category of ‘riotous living’.

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6. Domicile

1. Frankel’s Estate v The Master: the Appellate Division held that the matrimonial laws that govern a marriage are
determined by the domicile of the husband at the time of the marriage. The Court also held that it is not enough simply to
plan to go to a place to settle forever, you actually had to go there.
2. Grindal v Grindal: the court held that when someone leaves their domicile with the intention to not return, they will
remain domiciled there until they have established a new domicile of choice. (This requires that they are both (a) lawfully
present and (b) possess the intention to settle permanently in another place).
3. Chinatex v Erskine: the court held that length of residence, ownership of immoveable property, economic activity as
well as a state of mind ‘consistent’ with the intention to remain indefinitely is considered important evidence for
determination of domicile. A continued emotional attachment to one’s country of origin is insufficient to negate a domicile
of choice.
4. Erskine v Chinatex: the above verdict was overturned and the Court held that because Mr Erskine had stayed only for a
period of 18 months, for business purposes, and had maintained his ties with South Africa, there was not sufficient
evidence that he had established a new domicile of choice.

8. Parent and Child in Law

1. L v H: the Court essentially upheld the decision in H v I.

2. H v I: the Court held that a parent/guardian has sufficient authority to restrict the minor’s freedom of association,
provided that; (a) the minor is immature, (b) that the association is detrimental to minor’s best interests, (c) that the
guardian hasn’t waived parental rights, (d) that respondent knowingly defied parental authority and intends to continue
and (e) the exercise of parental control is reasonable.
3. Mentz v Simpson: the Appellate Division held that the duty of support is based on a blood-relationship and thus a
parent does not have a common law duty to support his step-children. 1 The Court also held that the duty may include both
expensive private schooling and university (depending on the parents’ means and the child’s ability to succeed).
4. Butcher v Butcher: In Butcher v Butcher, the Court held that adult dependent children are in principle entitled to
maintenance from their parents but this entitlement ends once the child has become self-sustaining.

1
This rule regarding step-children might have been changed by the Constitution and the Court in Heystek v Heystek held that the duty
extends to step-parents.
2