INFANT (in early forms enfaunt,
enfant, through the Fr. enfant, from Lat. infans,
in, not, and fans, the present participle of
fart, to speak), a child; in non-legal use, a very young
child, a baby, or one of an age suitable to be taught in an "infant
school"; in law, a person under full age, and therefore subject to
disabilities not affecting persons who have attained full age.
This article deals with "infants" in the last sense; for the
more general sense see
Infancy and Child. The period of full age
varies widely in different systems, as do also the disabilities
attaching to nonage (non-age). In
Roman law, the age of
puberty, fixed at fourteen for males and twelve
for females, was recognized as a dividing line. Under that age a
child was under the guardianship of a tutor, but several degrees of
infancy were recognized. The
first was absolute infancy; after that, until the age of seven, a
child was
infantiae proximus; and from the eighth year to
puberty he was
pubertati proximus. An infant in the last
stage could, with the assent of his tutor, act so as to bind
himself by stipulations; in the earlier stages he could not,
although binding stipulations could be made to him in the second
stage. After puberty, until the. age of twenty-five years, a
modified infancy was recognized, during which the minor's acts were
not void altogether, but voidable, and a
curator was appointed to
manage his affairs. The difference between the
tutor and the curator in Roman law was marked by the saying that
the former was appointed for the care of the person, the latter for
the estate of the pupil. These principles apply only to children
who are
sui juris. The
patria potestas, so long as it lasts, gives to the father
the complete control of the son's actions. The right. of the father
to appoint tutors to his children by will (
testamentarii)
was recognized by the
Twelve Tables, as was also the tutorship
of the
agnati (or legal as distinct from natural-.
relations) in
default of
such an appointment. Tutors who held office in virtue of a general
law were called
legitimi. Besides and in default of these,
tutors
dativi were appointed by the magistrates. These
terms are still used in much the same sense in modern systems
founded on the Roman law, as may be seen in the case of
Scotland, noticed below.
By the law of
England
full age is twenty-one, and all minors alike are subject to
incapacities. The period of twenty-one years is regarded as
complete at the beginning of the day before the birthday: for
example, an infant born on the first day of January attains his
majority at the first moment of the 31st of December. The
incapacity of an infant is designed for his own. protection, and
its general effect is to prevent him from binding. himself
absolutely by obligations. Of the contracts of an infant which are
binding
ab initio, the most important are those. relating
to "necessaries." By the
Sale of Goods Act 1893, an infant liable
on a contract for necessaries can be sued only for a reasonable
price, not necessarily the price he agreed to pay. The same statute
declares "necessaries" to mean "goods suitable to the condition in
life of the infant, and to his actual requirements at the time of
the sale and delivery." In the case of goods having a market price,
the market price is reasonable. In all other cases the question is
one of fact for the
jury. The
protection of infants extends sometimes to transactions completed
after full age; the relief of heirs who have been induced to
barter away their expectations is
an example. "Catching bargains," as they are called, throw on the
persons claiming the benefit of them the
burden of proving their substantial
righteousness.
At
common law a
bargain made by an infant might
be ratified by him after full age, and would then become binding.
Lord Tenterden's act required the ratification to be in writing.
But now, by the Infants' Relief Act 1874, "all contracts entered
into by infants for the repayment of money
lent or to be lent, or for goods supplied or to be
supplied (other than contracts for necessaries), and all accounts
stated, shall be absolutely void," and "no action shall be brought
whereby to charge any person upon any promise made after full age
to pay any debt contracted during infancy, or upon any ratification
made after full age of any promise or contract made during infancy,
whether there shall or shall not be any new consideration for such
promise or ratification after full age." For some years after the
passage of this statute highly conflicting views were held as to
the meaning of the part of section 2 whereby it was enacted that
"no action shall be brought whereby to charge any person ... upon
any ratification made after full age of any promise or contract
made during infancy." Some authorities were of opinion that the
section only applied to the three classes of contract made void by
the previous section, viz. for goods supplied, money lent and on
account stated. Others thought the effect to be that no contract,
except for necessaries, made during infancy could be enforced after
the infant came to full age. After several conflicting decisions it
has been settled that both these views were wrong. Of the infant's
contracts voidable at common law there were two kinds. The first
kind became void at full age, unless expressly ratified. The second
kind were valid, unless repudiated within a reasonable time after
full age was attained by the infant. The Infants' Relief Act
(section 2) strikes only at the first class and leaves the second
untouched. Thus a promise of marriage made during infancy cannot be
ratified so as to become actionable; but an infant's marriage
settlement, being of the second class, is valid, unless it is
repudiated within a reasonable time after the infant attains full
age. What is a reasonable time depends on all the circumstances of
the case. In a case decided in 18 93 a :settlement made by a
female infant was allowed to be repudiated
thirty
years after she attained full age, but the circumstances were
exceptional. A contract of marriage may be lawfully made by persons
under age. Marriageable age is fourteen in males and twelve in
females. So, generally, an infant may bind himself by contract of
apprenticeship
or service. Since the passing of the Wills Act, an infant, except
he be a soldier in actual military service or a seaman at sea, is
unable to make a will. Infancy is in general a disqualification for
public offices and professions,
e.g. to be a member of
parliament or an elector, a
mayor or
burgess, a
priest or
deacon, a
barrister or
solicitor, &c.
Before 1886 the custody of an infant belonged in the first
place, and against all other persons, to the father, who was said
to be "the
guardian of his
children by nature and nurture"; and the father might by
deed or will dispose of the custody
or tuition of his children until the age of twenty-one.
The Guardianship of Infants Act 1886 placed the mother almost on
the same footing as the father as to guardianship of infants. On
the death of the father the mother becomes guardian under the
statute, either alone when no guardian has been appointed by the
father, or jointly with any guardian appointed by him under 12
Chas. II. c. 24. A change of the law even more important is that
whereby the mother may by deed or will appoint a guardian or
guardians of her infant children to act after her death. If the
father survives the mother, the mother's guardian can only act if
it be shown to the
satisfaction of the court that the father
is unfitted to be the sole guardian. On the death of the father,
the guardian so appointed by the mother acts jointly with any
guardian appointed by the father. The Guardianship of Infants Act
1886 also gives power to the high court and to county courts to
make orders, upon the application of the mother, regarding the
custody of an infant, and the right of access thereto of either
parent. The court must take into consideration "the welfare of the
infant, and ... the conduct of the parents, and ... the wishes as
well of the mother as of the father." The same statute also
empowers the high court of justice, "on being satisfied that it is
for the welfare of the infant," to "remove from his office any
testamentary guardian or any guardian appointed or acting by virtue
of this act," and also to appoint another in place of the guardian
so removed.
The same statute gives power to a court sitting in
divorce practically to take
away from a parent guilty of a matrimonial offence all rights of
guardianship. When a
decree
for judicial separation or divorce is pronounced, the court
pronouncing it may at the same time declare the parent found guilty
of misconduct to be unfit to have the custody of the children of
the marriage. "In such case the parent so declared to be unfit
shall not, upon the death of the other parent, be entitled as of
right to the custody or guardianship of such children." The court
exercises this power very sparingly. When the declaration of
unfitness is made, the practical effect is to give to the innocent
parent the sole guardianship, as well as power to appoint a
testamentary guardian to the exclusion of the guilty parent.
Another radical change has been made in the rights of parents as
to guardianship of their children. In consequence of several cases
where, after children had been rescued by philanthropic persons
from squalid homes and improper surroundings, the courts had felt
bound by law to redeliver them to their parents, the Custody of
Children Act 1891 was passed. It provides that when the parent of a
child applies to the court for a
writ or order for the production of the child, and
the court is of opinion that the parent has abandoned or deserted
the child, or that he has otherwise so conducted himself that the
court should refuse to enforce his right to the custody of the
child, the court may, in its discretion, decline to issue the writ
or make the order. If the child, in respect of whom the application
is made, is being brought up by another person ("person" includes
"school or institution"), or is being boarded out by
poor-law guardians, the court
may, if it orders the child to be given up to the parent, further
order the parent to pay all or part of the cost incurred by such
person or guardians in bringing up the child.
A parent who has abandoned or deserted his child is, prima
facie, unfit to have the custody of the child. And before the court
can make an order giving him the custody, the onus lies on him to
prove that he is fit. The same rule applies where the child has
been allowed by the parent "to be brought up by another person at
that person's expense, or by the guardians of a poorlaw union, for
such a length of time and under such circumstances as to satisfy
the court that the parent was unmindful of his parental duties."
The 4th section of the Custody of Children Act 1891 preserves the
right of the parent to control the religious training of the
infant. The father, however unfit he may be to have the custody of
his child, has the legal right to require the child to be brought
up in his own religion. If the father is dead, and has left no
directions on the point, the mother may assert a similar right. But
the court may consult the wishes of the child; and when an infant
has been allowed by the father to grow up in a faith different from
his own, the court will not, as a rule, order any change in the
character of religious instruction. This is especially the case
where the infant appears to be settled in his convictions.
There is not at common law any corresponding
obligation on the part of
either parent to maintain or educate the children. The legal duties
of parents in this respect are only those created by the poor laws,
the Education Acts and the Children Act 1908.
An infant is liable to a civil action for torts and wrongful
acts committed by him. But, as it is possible so to shape the
pleadings as to make what is in substance a right arising out of
contract take the form of a right arising from civil injury, care
is taken that an infant in such a case shall not be held liable.
With respect to
crime, mere
infancy is not a defence, but a child under
seven years
of age is presumed to be incapable of committing a crime, and
between seven and fourteen his capacity requires to be
affirmatively proved. After fourteen an infant is
doli
capax. The law of Scotland follows the leading principles of
the Roman law. The period of minority (which ends at twenty-one) is
divided into two stages, that of absolute incapacity (until the age
of fourteen in males, and twelve in females), during which the
minor is in pupilarity, and that of partial incapacity (between
fourteen and twenty-one), during which he is under curators. The
guardians (or tutors) of the pupil are either tutors-nominate
(appointed by the father in his will); tutors-at-law (being the
next male agnate of twenty-five years of age), in default of
tutors-nominate; or tutorsdative, appointed by royal
warrant in default of the other
two. No act done by the pupil, or action raised in his name, has
any effect without the interposition of a guardian. After fourteen,
all acts done by a minor having curators are void without their
concurrence. Every deed in nonage, whether during pupilarity or
minority, and whether authorized or not by tutors or curators, is
liable to reduction on proof of "
lesion,"
i.e. of material injury, due
to the fact of nonage, either through the weakness of the minor
himself or the imprudence or
negligence of his curators. Damage in fact
arising on a contract in itself just and reasonable would not be
lesion entitling to restitution. Deeds in nonage, other than those
which are absolutely null
ab initio, must be challenged
within the
quadriennium utile, or four years after
majority.
The Guardianship of Infants Act 1886, the Custody of Children
Act 1891 and the Children Act 1908, mentioned above, all apply to
Scotland.
In
the
United States, the principles of the English common law as to
infancy prevail, generally the most conspicuous variations being
those affecting the age at which women attain majority. In many
states this is fixed at eighteen. There is some diversity of
practice as to the age at which a person can make a will of real or
personal estate.
Top topics
Wikis
Quiz
Facts
Misc
Search
