§ I. On Minors

762. • Minors are called those who have not reached the age fixed beforehand by law, so that, the authority of the father, or of a tutor or curator, being excluded, they may be able to act civilly. In Roman Law sons are minors up to the age of 25, and daughters of 21 years ¹. But in Gallic Law sons under paternal power of both sexes are minors until they have completed the age of 21 years. Nevertheless, with respect to contracting marriage, men who have parents or ascendants are not reputed majors unless they have arrived at the age of 25 years.

¹ The old Roman law assigns the twenty-fifth year indiscriminately both for males and for females as the year after the completion of which one ceased to be a minor; but the recent law published under Gregory XVI defines the twenty-first year indiscriminately for both sexes. Nevertheless, from the old law, leave of age granted to females is found two years earlier than to males.

1. Some minors are not emancipated, but others are emancipated. The former are simply subject to the authority of the father or tutor. But the latter are those who have been freed from the aforesaid authority by the benefit of emancipation according to the forms prescribed by law. In Roman Law and in Canon Law, some minors are puberes, and others impuberes. Boys who have reached the age of 14 and girls of 12 years are called puberes. The rest are called impuberes. Impuberes deprived of a father and placed under the authority of a tutor come under the name of pupilli. From the same Roman Law, a tutor is given to pupilli for all things, but a curator is given to puberes for the administration of goods only. With these things set down,

763. • 1. A filiusfamilias who is impubes, even if he contracts with the consent of the father and concerning castrensian goods, is not obliged; on the contrary, if a pubes son contracts concerning castrensian and quasi-castrensian goods, he is obliged, provided it is not a question of alienating immovables or precious movables; but he can by no means dispose concerning profectitious and adventitious goods, because regularly he does not have their administration.

2. A pupillus, or impubes deprived of a father, with the authority of the tutor, but a minor with the consent of the curator, contract validly, unless it is a question of immovables or precious movables, for which a decree of the judge is required ².

² Nevertheless a pupillus can, for his own advantage, oblige another to himself (e.g. by accepting a donation), even without the authority of the tutor, as is clear from sect. Pupillus, Instit. De inutil. stipul. - Lugo, De Iust., disp. 22, n. 283.

764. • 1. A non-emancipated minor cannot contract firmly without the assistance of the tutor. Nevertheless, if a contract is made in such a way, it will be valid of itself, but rescindable, unless it favors the minor. Hence, if from a contract of this kind lesion follows, the minor is admitted to the benefit of restitution; otherwise, if no lesion has followed. Hence the axiom: A minor is restored, not as a minor, but as injured.

2. An emancipated minor is able to make all acts of administration determined by law. But for the rest the assistance of the curator is required.

Restitution has no place: 1. if the minor by fraud, but not if by mere affirmation, persuaded another that he was of age; 2. if the lesion comes from a fortuitous and unforeseen event; 3. if the obligation arises from a delict or quasi-delict; 4. if, while exercising commerce or an art, he contracted for matters of his commerce or art; 5. in certain other cases excepted by law (Arts. 450..., 476..., 1304 and following).

765. You will resolve. - 1. A minor can in safe conscience use the benefit of the law, the case of bad faith being excluded, since the law was enacted in his favor. Nevertheless he cannot seek rescission in order to be exempted from restitution of the money which he received as a loan and squandered, although he derived no profit from it; for he is bound to fulfill the obligation which he certainly knew when he was asking for and receiving the money. From another side, it must be attributed to his own fault if he perceived no advantage from it. - Pothier (Traite des obligations, n. 52), with whom Toullier agrees together with other jurists, and Gousset (n. 747).

2. He who contracted with a minor can stand by the contract until the nullity is invoked by the minor, or by his father or tutor. Nevertheless a private petition suffices for him to be held to rescission when the lesion is altogether open.

3. The minor alone, both by himself and through others by whom he is represented, can seek rescission of the contract; hence those who contracted with him cannot oppose his incapacity (Art. 1125).

4. A minor can no longer impugn an act performed during minority when, having already been made major, he has ratified it; because he was fully able to contract when he ratified the act (Art. 1311). - See Cases, n. 770 and following.