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Suraj NaraIn Dube Vs. Sukhu Aheer and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad
Decided On
Reported inAIR1928All440
AppellantSuraj NaraIn Dube
RespondentSukhu Aheer and anr.
Excerpt:
- - 3. the question before us is whether consideration received by a person during his minority can be a good consideration for a fresh promise by him after his attaining majority. no doubt under section 2 a past consideration may be a good consideration, but that past consideration must be an existing one and a valid one. payment of money is covered by clause (3). if it fell under clause (2) a promise to pay a previous loan, whether it was contracted by a minor, or whether it was barred by limitation, or whether it was a parol debt, or money advanced on a bond, would be equally good. it accordingly made a special provision for a time-barred debt and permitted such a debt to be a good consideration provided the promise is in writing signed by the party to be charged therewith or his.....sulaiman, ag. c.j.1. the present case must be decided on the provisions of the contract act. analogies drawn from the english common law where the contract of a minor is only voidable, are wholly inappropriate when we have a codified law in this country. since the case of mohori bibee v. dharmodas ghose, [1903] 30 cal. 539 it is now settled law that a contract by a minor is not only voidable, but is altogether void. but although such a contract is void, it cannot be said to be prohibited by law or otherwise unlawful. nor does any question of public policy arise. section 23 is inapplicable.2. under section 11 a minor is not competent to contract. he is disqualified from contracting. he can, therefore, neither make a valid proposal, nor make a valid acceptance as defined in section 2,.....
Judgment:

Sulaiman, Ag. C.J.

1. The present case must be decided on the provisions of the Contract Act. Analogies drawn from the English common law where the contract of a minor is only voidable, are wholly inappropriate when we have a codified law in this country. Since the case of Mohori Bibee v. Dharmodas Ghose, [1903] 30 Cal. 539 it is now settled law that a contract by a minor is not only voidable, but is altogether void. But although such a contract is void, it cannot be said to be prohibited by law or otherwise unlawful. Nor does any question of public policy arise. Section 23 is inapplicable.

2. Under Section 11 a minor is not competent to contract. He is disqualified from contracting. He can, therefore, neither make a valid proposal, nor make a valid acceptance as defined in Section 2, Clauses (a) and (b). He cannot, therefore, for the purposes of the Act be strictly called a promisor within the meaning of Clause (c). Nor can, therefore, anything done by the promisee be strictly called a consideration at the desire of a promisor as contemplated by Cl (d). It may, therefore, be urged that an agreement by a minor cannot be strictly described as being one for 'consideration' as defined in the Act. It is not, however necessary to decide this point.

3. The question before us is whether consideration received by a person during his minority can be a good consideration for a fresh promise by him after his attaining majority. No doubt under Section 2 a past consideration may be a good consideration, but that past consideration must be an existing one and a valid one. Section 25 is the only section which declares that an agreement made without consideration is void. The whole question is whether such a transaction falls within Section 25, Sub-clause (2).

4. The case of Bindeshri Prasad v. Sarju Singh A.I.R. 1923 All. 590 is distinguishable. There the defendant's father was a disqualified proprietor when he had incurred the first debt, The defendant was a major when he borrowed Rs. 1,800 and agreed to pay not only that amount but also the money borrowed by his deceased father. The finding was that the creditor would not have advanced more money without an undertaking by the defendant to pay the whole amount. The contract by the father was void but that made by the son was not so, and as there was fresh consideration for it, it was not without consideration. The promise was therefore held to be enforceable.

5. In the case of Narain Singh v. Chiranji Lal A.I.R. 1924 All. 730, it was remarked that if a minor, when of full age, takes it upon himself to pay a previous debt, there is no reason either in law or equity why his agreement should be deemed to be 'unlawful.' Of course there is no question of unlawfulness, but one of want of consideration. This also was a case of a further advance after majority. There is no question of ratification in such cases. The case of Gregson v. Rajah Sri Sri Aditya Deb [1890] 17 Cal. 223 was distinguishable on the ground that the transaction of a disqualified proprietor was voidable. But the language of Section 37, Court of Wards Act, is similar to that of Section 11, Contract Act, and it is difficult to hold that a contract by a disqualified proprietor is 'only voidable and not void. The real ground on which the Privy Council case is distinguishable is that although the contract had commenced during the period of disqualification, it had been continued and performed after the disqualification had ceased and fresh advances also had been made by the creditor.

6. Section 25, Sub-clause (2) applies when there is a promise to compensate wholly or in part a person who has already voluntarily done something for the promisor. The word 'compensate' has been used advisedly and does not connote the same idea as repayment of a loan. The word 'voluntarily' also indicates to my mind that something has been done without any promise of compensation. It may or may not have been done out of one's own accord without any request of the other person, but there should not be any understanding between the parties that compensation would be given for the act in future.

7. Similarly the expression 'done some thing for' does not in my opinion mean 'advance money to another person.' Doing something for a person is not paying money to him.

8. There is another reason why I think that Clause (2) does not apply to such a case. Payment of money is covered by Clause (3). If it fell under Clause (2) a promise to pay a previous loan, whether it was contracted by a minor, or whether it was barred by limitation, or whether it was a parol debt, or money advanced on a bond, would be equally good. Clause (2) would be wide enough to cover all such cases without any limitation. Such a result was obviously not contemplated by the legislature. It accordingly made a special provision for a time-barred debt and permitted such a debt to be a good consideration provided the promise is in writing signed by the party to be charged therewith or his agent. If the previous indebtedness can be a good consideration, it is hardly appropriate to say that the said consideration has failed. In the same section the legislature has used two distinct expressions: 'compensate for something done' and 'pay a debt' in two different clauses. They obviously do not mean the same thing. The fact that Clause (3) specially provides for time-barred debts suggests to my mind that such a debt does not come within Clause (2).

9. It may further be observed that in consideration for the first advance made by the creditor, he obtained a promissory note from the minor. The consideration was, as held by some of the learned Judges of the Madras High Court, completely exhausted. There was no longer any subsisting consideration; which would support a subsequent promise to pay after attaining majority. Such a fresh promise if no further advance is taken is totally without consideration and therefore void and unenforcible.

Mukerji, J.

10. This is a reference to the Full Bench and has arisen under the following circumstances: One Suraj Narain lent a sum of money on 24th June 1919 to one Sukhu Ahir who was at that date a minor. Nearly four years later, on 17th June 1923, in consideration of the principal sum lent and interest which had swelled together to the sum of Rs. 76, Sukhu Ahir who had by that time attained majority and his mother gave a simple money bond to Suraj Narain. Suraj Narain brought a suit in the Court of Small Causes at Jaunpur. He was met with the plea that the previous bond, having been executed by a minor, could not form a valid consideration for the subsequent bond and the suit must fail. The learned Judge, Small Cause Court (Munsif with Small Cause Court powers) referred to two conflicting rulings of this Court and following the later ruling dismissed the suit. The plaintiff came up in revision to this Court and the learned Judges, before whom the matter came, referred it to a larger Bench.

11. On the applicant's behalf a large number of rulings for and against the appellant's contention have been brought to our notice and I am thankful to the learned Counsel for this assistance rendered to the Court. This assistance is all the more valuable, because the respondents are unrepresented.

12. The learned Counsel for the appellant has argued that the case is covered by Section 25, Clause 2, Contract Act, and the learned Judge of the Court below was wrong in holding that the contract is without consideration.

13. Section 25, Contract Act, says that an agreement made without consideration is void, but furnishes certain exceptions. The one exception is when the consideration takes the shape of

a promise to compensate wholly or in part a person who has already voluntarily done something for the promisor....

14. The question is whether it is not the case that Suraj Narain, by advancing the sum of Rs. 40 on 24th June 1918, does not fall within the description of 'a person who has already voluntarily done something for the promisor.' I have consulted Strouds' Dictionary and War-ton's Law Lexicon. According to them, the word 'voluntarily' is used in contradistinction from the word 'compulsorily' or the expression 'under compulsion.' It has been suggested that where a person does something at the request of another, he cannot be said to have done that thing voluntarily. Let us take an example. A man in going out of the station, asks a poor neighbour of his to be good enough to look after his house which would lie unoccupied. The neighbour as a good neighbour, takes care of the house and when the occupant comes back, he agrees to pay his poor neighbour Rs. 20 for services rendered. Can it be said that the poor neighbour did not act as he did, voluntarily? I do not think it can be said that the act was otherwise than voluntary. The poor neighbour could not possibly sue for his wages his richer neighbour, for there was no contract to compensate. There may have been an expectation that some bounty would come out of the pocket of the richer neighbour, but it was a mere expectation and there was no lawful claim. Then it was suggested that the expression has done something 'will not cover a case of payment of money, but the definition of' consideration to be found in Section 2, Clause (d), Contract Act, will show that the expression of doing something, has been used there and must be taken as being wide enough to cover a case of payment of money.

15. Yet a third objection was suggested, and it was this. If the consideration, paid, for what turned out to be a void contract, on account of the minority of Sukhu Ahir, could be treated as something done by Suraj Narain, the case of a debt barred by limitation would be covered by Clause 2, Section 25 and Clause 3 of the same section would be a superfluity. I do not think that this suggestion is really weighty. When there is a good contract, enforceable in law, the consideration paid is, to use an unscientific but expressive word, counterbalanced by the consideration passing from the other party. Once there is a perfected con tract; that contract alone can be enforced and it is not a case where a consideration has failed. The case where a consideration has failed would be covered by the second clause, but not a case where the contract was good. It was, therefore necessary to provide, separately, for the case of a debt which was quite good, but was not enforced within time by the creditor, Suraj Narain, in giving Rs. 40 to Sukhu got nothing in return. The payment was therefore, 'something done,' but for, practically, no consideration.

16. I do not at all propose either to enter into a discussion of the English law or into a discussion of the case decided in the several Indian Courts. The English law is not the same as the law in India and many of the Indian cases do not consider Section 25, Clause 2, at all. In Chinna Mal v. Mulchand A.I.R. 1928 P.C. 99 the Privy Council disapproved reading a section of the Indian Contract Act in the light of English law, and they made similar observations in Ramanandi Kuer v. Kalawante Kuer A.I.R. 1928 P.C. 2, Under English law (Infants Relief Act 1874, Section 2) the contract by a major, in the circumstances of the present case, would not be void like a contract by a minor, but no action is allowed to be maintained to enforce the contract. Such a suit would not be maintainable even where a part of the consideration is fresh, and the balance consists of money lent during the defendant's minority. This Court, however held in Bindeshri Prasad v. Sarju Singh A.I.R. 1923 All. 590 that such a contract would be good and enforceable in India. Some Lahore cases considered Section 25, Clause 2 and held that it did apply. In some others, in the same Court, it was held that it did not apply. In the Madras High Court it was said that the consideration originally paid under the void contract had as it were, spent itself and could not support the subsequent contract; but, with respect, it is because the earlier contract has been found to be void that the second contract has been allowed by Section 25, Clause 2 to be valid. In my opinion it is not the province of a Judge to consider abstract principles of law and to find what that law should be, where the law is laid down in plain language and as the only guide. Beading Section 25, Clause 2 as it stands and giving every word its natural meaning and comparing the language with the language of the definition of 'consideration' to be found in Section 2, Clause (d) of the Act, I am perfectly satisfied that the case of Suraj Narain is approved of by the Contract Act.

17. I would, therefore, hold that the bond is not void for want of consideration and should be enforced in a Court of law.

Boys, J.

18. This reference to a Full Bench concerns the validity of an alleged contract entered into by an adult nominally replacing but in effect confirming an unenforceable agreement into which he had entered when still a minor.

19. The facts are that on 24th June 1919. Sukhu the defendant, who was then a minor, executed a simple bond for Rs. 40 bearing interest at Rs. 2 % p.m., in favour of the plaintiff, Suraj Narain, the alleged necessity for the borrowing being the payment of land revenue.

20. On 17th June 1923, by which date he had become of age, Sukhu and his mother, Mt. Bilasi executed a simple bond for Rs. 76 which recited and represented the Rs. 40 which had been taken on the previous bond and Rs. 36 interest thereon.

21. Suit No. 145 of 1927 was filed by the lender in a Court of a Judge of Small Causes. The learned Judge of that Court holding that there were two conflicting authorities, Narayan v. Chiranji A.I.R. 1924 All. 730 and Bindeshri v. Chandika : AIR1927All242 and that he was bound to follow the later decision, dismissed the suit. In view of the apparent conflict between these two decisions the plaintiff's application to this Court in revision has been referred to this Full Bench.

22. Left us first consider by itself the earlier agreement, that 24th June 1919. It would seem superfluous to note the importance of keeping in mind of which agreement we are speaking, but in some of the cases it is the failure to do so which has led-I say so with all respect.-to error. Particularly in reference to Section 25(2), we shall find that part concerns the earlier stage and part concerns the later stage of the transactions while the opening words of the section concern the later Stage only.

23. The first agreement was entered into while Sukhu was yet a minor and was manifestly, and the contrary is not contended, an unenforceable agreement and therefore void [S. 2(g)], Sukhu being not competent to make a contract.

24. It may be emphasized here (for the distinction, as will appear later, is of importance) that this agreement was not enforceable because the minor was not competent to contract and not because no consideration passed from him. 'Competency to contract' and 'consideration' are two distinct elements of a contract, and an agreement may fail to amount to a contract owing to the absence of either or both of them. The omission to bear in mind this distinction has also, I think, led to inaccuracy.

25. In this first agreement there was no 'competency to contract' but there was 'consideration'. The minor made a promise and gave a bond and a promise amounts to consideration [cf. Section (2)(d)] though the promise may for some reason be unenforceable. Consideration' and 'contractual capacity' being co-ordinate constituents of a contract the latter element should not be imported into the definition of the former:cf. Indran Ramaswami v. Anthappa Chettiar : (1906)16MLJ422 . The lender would of course have not advanced the money without the promise and the bond. In the first agreement, then, there was 'consideration' on both sides offered and accepted.

26. The first agreement being void, it could not be, and it is not contended that it was or could be the subject of ratification. In fact the word 'ratification' does not even appear in the Contract Act in this connexion. What is contended is that there was a new and independent fresh agreement which is enforceable. The second agreement we must now consider.

27. Admittedly there was now competency to contract, and the answer will be found to turn on the question whether the other element existed, consideration, and the interpretations of Section 2(d) and 25 excep. 2.

28. In cases exactly or nearly similar in their facts, in which the later agreement has been enforced as amounting to a contract, it is first to be noted as remarkable that the reasoning has advanced from two diametrically opposed standpoints. On the one hand it has been held, relying on Section 2(d), that the agreement was supported 'by consideration, the past service or advance, moving from the promisee and that the agreement was therefore binding on the promisor: cf. Sindha Shri Ganpatsinghji v. Abraham [1896] 20 Bom. 755 and Narayan v. Chiranji A.I.R. 1924 All. 730.

29. On the other hand it has been held that the agreement was without consideration moving from the promisee and, relying on Excep. 2 to Section 25, the agreement was held binding on the promisor: cf. Karm Chand v. Basant Kaur [1911] 31 P.R. 1911 and Ram Rattan v. Basant Rai A.I.R. 1921 Lah. 205.

30. But in some cases where it was held that there was no consideration moving from the promisee the Court did not apply Section 25(2) and held the agreement not binding as to the prior advance or service: cf. Indran v. Anthappa : (1906)16MLJ422 Narendra Lal v. Hrishikesh Mukerjee [1918] 46 I.C. 765 and Bindeshri v. Chandika : AIR1927All242 .

31. The first question, then for determination is, whether in the case of this second agreement in suit there was or was not consideration moving from the promisee, the plaintiff. I do not think that there was.

32. In Sindha Shri Ganpatsinghji v. Abraham [1896] 20 Bom. 755 and Narayan v. Ghiranji A.I.R. 1924 All. 730 it was suggested that the consideration moving from the promisee was past service or past loan and reliance was placed on Section 2(d), but in my opinion Section 2(d) has no application to the facts.

33. In both cases the facts found or assumed on which the judgments proceeded may be stated as follows: A asked for something from B. There was an implied or express promise by A to pay. (In the first case it was found that neither party considered the service as intended to be gratuitous, and in the second there could be no suggestion that the advance was made as a gift.) B did what he was asked to do, i.e. consideration passed on both sides and there would have been a contract on which B could have sued but for A's want of competency to contract. The considerations were exhausted (cf. Indran v. Anthappa : (1906)16MLJ422 and the latter promise was actually without consideration. (We are limiting our consideration, of course, to services rendered or advances made during minority. To services or advances after majority other considerations would apply.)

34. To the facts as above set out Section 2(d) had in terms no application. It applies, so far as we are here concerned with it, to a case where 'at the desire' of A. but without any promise made by A, B 'has done' something for A and later A makes a promise, and then the service is declared to be consideration for the promise.

35. We shall see later that a corollary to this is to be found in Section 25(2) which deals with the case where something has been done, also without a promise by A but, further, without any request by A, not at his desire, a case which has to be specially provided for owing to the fact of the absence of any request taking the case out of Section 2(d) and so taking the service out of the definition of 'consideration.'

36. Section 2(d) does not state a case where, at the desire of A and upon a promise by A, B has done something and later A makes a fresh promise. Where such are the facts between the parties there may or may not be questions as to ratification, acknowledgment novation, etc., in the particular circumstances, but we are concerned at present only with Section 2(d) and Section 2(d) is not concerned with a case where there was an earlier promise at the time B did something for A and then an additional later promise.

37. I am of opinion, therefore, that where an advance was made during minority upon a promise to pay, the advance so made cannot by virtue of Section 2(d) be held to be consideration for a subsequent promise made after majority.

38. The original advance was then no consideration for the second agreement. The defendant was given by the second agreement an extended period within which to pay, but manifestly the grant of that extension could not amount to consideration when there was no liability under the first agreement to pay at all.

39. There was in this case no further advance and no further service after the defendant attained majority (as there was in the case Sindha Shri Ganpatsinghji v. Abraham [1896] 20 Bom. 755, Kundan Bibi v. Sree Narayan [1907] 11 C.W.N.135, Narendra v. Hrishikesh [1918] 46 I.C. 765(overruling the last case); and Bindeshri v. Chandika : AIR1927All242 , so it would be inappropriate to discuss in this case whether such further thing done would or would not constitute consideration for the whole 'of a promise including the prior advance or service rendered, but I should be prepared as at present advised to answer the question in the negative.

40. The second agreement being without consideration it is void (Section 25) unless it comes within one of the exceptions to that section. It is suggested and it has sometimes been held the case comes within Excep. (2).

41. Was there a promise by the defendant to compensate the plaintiff for something which he had voluntarily done for the defendant?

42. It is suggested that the promise to repay contained in the second bond was a promise by the defendant to compensate the plaintiff for what he had already voluntarily done, i.e. lent him money. I think the contention cannot be supported.

43. Before discussing authorities the very wording of the exception itself suggests to me its inapplicability to such cases as the present. Too narrow an interpretation must, of course, not be put onwards intended to cover a class of cases differing in their detailed circumstances. But the word 'compensate' is wholly inappropriate to a promise to 'repay money lent', and the words 'voluntarily done' are wholly inappropriate to the case of a lender making a loan on a promise of repayment. Nor is the use of the word 'voluntarily' to be explained as in antithesis to the word 'compellable' in the next sentence. The apparent antithesis is deceptive, for the word 'voluntarily' applies to the act of the promisee and the word' compellable' applies to the promisor. The wording of this part of the exception itself suggests to me that the condition is applicable only where the person to be compensated did something for the other person entirely of his own accord without any request; and that it applies to the type of case where, e.g., A sees B's boat has got adrift from its moorings and, without any suggestion on the part of B takes steps to recover the boat, and B, appreciating the service that has been rendered, promises to compensate. I am in entire accord, in this respect with what was said in Sindha Ganpatsinghji v. Abraham [1896] 20 Bom. 755.

The section (Section 25) appears to cover, oases where a person without the knowledge of the promisor or otherwise than at his request does the latter some service and the promisor undertakes to recompense him for it.

44. That is the natural meaning of the language.

45. So read, we find Section 252 a natural corollary to Section 2(b). A has done something for B without any promise made by B at the time. If A did the thing at B's desire and B subsequently made A a promise the thing done by A is by virtue of Section 2(d) consideration which renders B's promise binding. But if A did the thing without any expression of desire by B, then although B might make a subsequent promise, the case would not for want of the request by B, come within Section 2(d), and the thing done would not constitute consideration for the promise. To prevent such a promise not being binding Section 25(2) has been inserted as an exception to the rule with which Section 25 opens.

46. Again, if the word voluntarily did not exclude cases where the thing was done at the request of the person subsequently making the promise, the clause would as to those cases be out of place, for by Section 2(d) the thing done would be consideration for the promise and the case would not come within the opening words of Section 25 and there would be no need to make an exception in regard to it.

47. In passing it may be noted that the term agreement' used in Section 25 is hardly appropriate to the facts mentioned in the second exception, on any view of the scope of the word 'voluntarily.'

48. To consider now the judicial authorities bearing on Section 25(2).

49. In Karm Chand v. Basant [1911] 31 P.R. 1911 it was said:

As at the time when the thing was done, the minor was unable to contract, the person who did it for the minor must, in law, be taken to have done it voluntarily: p. 330, col. 2.

50. This would suggest that 'voluntarily' is equivalent to 'for a person incompetent to contract'. I have already referred to the distinction between 'absence of consideration' and absence of competency to contract,' and noted that the word 'voluntarily' is quite inappropriate to a case where consideration moved from the promisor.

51. Then it was said:

Section 25 of the Act was intended to give effect to agreements which would otherwise be void as being without consideration; an infant's agreement is such, and, in our opinion, the provisions of the section, which are wide in terms, apply no less to such an agreement than to a contract by a major to pay for past services: p. 330, col. 2.

52. It is of course clear that Section 25 was intended to give effect to some (not all) agreements which would otherwise be void as being without consideration; but apart from this obvious limitation, I would, with all respect, point out that hare there seems some confusion. The agreement in this case which the opening words of Section 25 declare to be void is not the infant's agreement, the first one, but the second, the major's agreement.

53. One of the cases relied upon was Kundan v. Sree Narayan [1907] 11 C.W.N.135 which has since been overruled in Narendra v. Hrishikesh [1918] 46 I.C. 765.

54. The next case, Ram Rattan v. Basant A.I.R. 1921 Lah. 205, practically did no more than follow Karm Chand v. Basant [1911] 31 P.R. 1911, and Kundan v. Sree Narayan [1907] 11 C.W.N.135, which latter, as I have noted, was relied on in Karm Chand's case and has been overruled.

55. On the other hand 1 find support for my own view in the three following cases. To Indram v. Anthappa : (1906)16MLJ422 I have already referred in another connexion. The full text is not available to me at the moment, but the facts appear to have been similar to the present case and Section 25(2) was not applied.

56. To Narendra v. Hrishikash [1918] 46 I.C. 765 I have also referred as overruling Kundan v. Sree Narayan [1907] 11 C.W.N.135. In both cases there was also a further advance. It was, how ever, said in Narendra's case:

Section 25 does not include the renewal of an infant's promise apparently because an infant's promise does not give rise to an imperfect obligation, but is ab initio void: p. 773, col. 2.

and again, in considering the enforceability of the promise to repay the advance made during minority.

An agreement by a minor is void, not voidable and as such it does not admit of ratification. It would I think, be inconsistent with the general tenor and policy of the Contract Act to hold that though the agreements were void when they were made and cannot be ratified by the promisor on attaining majority nevertheless the some result can be achieved by the promisor taking a trifling loan from the promisee and promising to pay off that sum and the old irrecoverable debts: (p. 774, col. 1.)

57. A decree was only given for the payment of the new advance.

58. Bindeshri v. Chandika : AIR1927All242 was another case in which there was also a further advance and a decree was only given for the amount of the further advance.

59. For the reasons that I have given I hold that neither Section 2(d) nor Section 25(2) is of any help to the plaintiff-creditor.

60. I am not overlooking that, if there was in fact no desire expressed at the time and no promise made at the time the money was advanced or the service rendered during the minority but only a promise after attaining majority, the case might come literally within Section 25(2), but obviously such a case would be rare: cf. the remarks in Sindha Shri Ganpat Singhji v. Abraham [1896] 20 Bom. 755. The present is not such a case and I have not to consider it.

61. I would add that where the legislature has declared an infant incompetent to contract, has declared his agreements void, and has pointedly refrained from declaring them to be merely voidable contracts, and from giving him any power of ratification, it would take very cogent reasons to compel me, were I in doubt, which I am not, to admit a creditor by a back door where the legislature had closed the front. That is, however, only a question of expediency and public policy I am of opinion that the law also forbids it.

62. On the broad principle of expediency it is urged:

Why should an adult be unable, having reached maturity, to make a binding promise to pay money he had actually received.

63. To my mind there is every reason. A lender would be able to advance money to an inexperienced boy, knowing that as soon as the boy became of age, he, the lender, could use as a lever to extract a fresh promise the argument that it was a debt of honour and shame him into making a fresh promise to discharge an obligation which he had incurred at a time when, ex hypothesi, he was not capable of judging for himself.

64. I would dismiss the application.

65. The order of the Court in accordance with the opinion of the majority is that this application be dismissed with costs.


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