The Liability Of Infants In Fraud And Restitution
| Author | P. S. Atiyah |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00526.x |
| Published date | 01 May 1959 |
| Date | 01 May 1959 |
THE
LIABILITY OF INFANTS IN FRAUD
AND RESTITUTION
THE
object of this article is to explore the liability of infants in
respect of fraud, and under the equitable doctrine of restitution,
together with certain related matters. This subject has received
scant treatment by the books on Contract. Cheshire and Fifoot
on
Contract,
for instance, dismiss the subject in a little over a page.'
Pollock, too, is content with a couple of pagesY2 and the accounts
in Anson,5 Halsbury' and Chitty5 are all equally meagre. Only
in Salmond and Williams is a discordant note sounded on one
or
two points but even here the account occupies little more than two
pages. Yet the last case
on
the subject was
R. Leslie, Ltd.
v.
Sheill,'
in
1914,
since when the pmblem of restitution has received
extensive analysis in
Sinclair
v.
Brougham
and
Re Diplock.*
A
re-examination of the matter, therefore, seems overdue.
Most of the books treat the problem as concerned exclusively
with actions brought against the infant. In fact, however, equitable
relief against fraudulent infants has been just as frequently invoked
in actions brought by infants, and it is necessary to examine some
of these cases before the far more complicated questions arising in
actions against infants can be considered. Before we do this, how-
ever, we must decide what exactly is meant by "fraud"
in
this
connection.
1.
THE
MEANING
OF
FRAUD
It
is commonly stated that the equitable doctrine of Restitution is
confined to those cases where an infant has committed common law
fraud by falsely representing himself to be of full age when he was
well aware that he was still an infant." In fact the position
is
by
no means
so
clear that a dogmatic statement of this sort is possible.
In the first place the doctrine in question
is
an equitable one, and
the equitable conception of fraud
has
always been much wider than
1
4th ed.. pp. 345346.
*
13th ed., pp.
63-65.
a
20th ed., pp. 136-137.
4
3rd ed.,
Vol.
21,
pp. 148-149.
6
2lst
ed.,
Vol.
1.
6OfXO8.
6
pp. 316-319.
f
[1914] 3
K.B.
607.
8
[lSli]
A.C.
398.
To
be quite accurate
Sjnclair
V.
Brougham
wan decided
a
few
weeks before
Leslie
v.
Sheill,
but
in
view of the complexity
of
the probleme
rained
by
the former cane, it
WBE
obviousl~ imgosaible
for
them
to
be
properly
argued and considered
in
the later case, alt
oug
Lord Sumner did
give
SincIatr
v.
Brougham
a
passing
mention.
8
[1948]
Ch.
465.
10
See,
e.g.,
Cheshire
It
Fifoot,
loc.
d.,
and
Pollock,
ZOO.
n't.
VOL
22
278
18
274
THE
MODERN
LAW
REVIEW
VOL.
M
the legal conception.”
It
is true that in an action based on fraud
and nothing else, whether in law
or
in equity, common law fraud
must be proved, but where the action is founded on some other
right,
or
where fraud is set up by way of defence, in equity, at all
events, fraud is not always restricted
to
wilful deceit. In the words
of
Lord Haldane in
Nocton
\.
Ashburton
12:
“It
must now be taken to be settled that nothing short
of
proof of
a
fraudulent intention in the strict sense will suffice
for an action
of
deceit. This is
so
whether a Court of Law
or
a
Court
of
Equity is dealing with the claim.
. .
.
But where
fraud is referred
to
in the wider sense in which the books are
full of the expression, used in Chancery, in describing cases
which were within its exclusive jurisdiction, it is a mistake
to
suppose that an actual intention
to
cheat must always be
proved.”
l3
When we turn to the authorities we find courts of equity frequently
treating conduct as fraudulent which would not come within the
common law conception of fraud.
For
instance, in
Clarke
v.
Cobley
l4
an infant persuaded the plaintiff
to
surrender some pro-
missory notes signed by his wife, in return for a bond signed by the
infant himself. The bond, of course, was void, and it was held
that the infant must restore the promissory notes for his conduct
had been fraudulent. The case is treated by Pollock on
Cotitrnct,lS
and by Lord Sumner in
Leslie
v.
Sheill
l6
as though legal fraud
were proved, but there is not one word in the report to confirm this
suggestion. In other cases, which will be examined in more detail
shortly, it has been uniformly held that an infant cannot stand by
while his property is dealt with by a parent
or
guardian, and later
impeach the transaction, although in none
of
these caws was there
any suggestion of fraud in the legal sense.” Similarly, it has been
held that if
an
infant beneficiary persuades his trustee to deliver
trust property
or
money to him, he cannot, when he comes of aoe
b’
make the trustee answerable for the same property again.I8 Again,
in these cases there was nothing in the nature of fraudulent repre-
sentations, yet the infant’s conduct was held by court of equity
to
be fraudulent.
It
is submitted that these cases show that for
an infant to attempt to obtain something for nothing is, in equity,
fraudulent conduct.
11
See Salmond
6;.
Williams,
Contract,
pp.
318-319.
12
[1914]
A.C.
932,
at
953-05i.
Is
It
is true that Lord Haldane
was
primarily referring here
to
eqiiitnlile
cases
of
a
fiduciary relationship, but the whole tenor of his speech
shous
that
the
conception of fraud in equity is not to
be
confined within
a
narrow
foriiiulo
as
at
law.
14
(1789) 2
Cox
173.
15
At
n.
fi4.
r-
---
16
fig141
3
K.B.,
at
617.
1’
See
Saoage
V.
Foster
(1723) 9
Mod.
35;
Watts
V.
Creswell
(1714) 2
Eq.Ca.Ab.
18
See
Cory
v.
Certcken
(1816)
2
Madd.
40,
and
other cases cited
infro.
415,
infra.
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