Sect. 2. Capacity Capacity of Parties. 2. Capacity to buy and sell is regulated by the general to buy and law concerning capacity to contract, and to transfer and sell. acquire property.1 Provided that where necessaries are sold and delivered to an infant [or minor] or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor.2 "Necessaries" in this section mean goods suitable to the condition in life of such infant [or minor] or other person, and to his actual requirements at the time of the sale and delivery.1 The words "and delivery" at the end of the section were added in Committee, probably to point the distinction between a "bargain and sale" and a "sale and delivery." Capacity to contract must be distinguished from authority to contract. Capacity means power to bind oneself; authority means power to bind another. Capacity is part of the law of status; authority is part of the law of principal and agent. Capacity is usually a question of law; authority is usually a question of fact. As regards authority to buy or sell on behalf of another there appears to be nothing peculiar to the contract of sale, except the provisions of the Factors Acts, post, p. 124. On this subject, therefore, the reader is referred to general works on the law of Agency and Partnership. The term "minor" is the Scotch equivalent of our term infant. The section is probably declaratory. As Cotton, L.J., has pointed out, when necessaries are supplied to a person who is incompetent to contract, the obligation to pay for them arises really quasi ex contractu. He cannot bind himself to pay for them, but it is for his 1 See Pollock on Contracts, 4th ed., pp. 49-94; Benjamin on Sale, 4th pp. 23-41. ed., 2 Ryder v. Wombwell (1868), L. R. 4 Ex. 32, at p. 38, Ex. Ch. (jewelry). 3 lbid.; Peters v. Fleming (1840), 6 M. & W. 42, at p. 46, per Parke, B., and p. 48, per Alderson, B.; Pollock on Contracts, 4th ed., p. 71. Barnes v. Toye (1884), 13 Q. B. D. 410; Johnstone v. Marks (1887), 19 Q. B. D. 509, C. A. 5 Re Rhodes (1890), 44 Ch. D. 94, at pp. 105-107, C. A. (lunatic). benefit that he should have them, and the law therefore will see that they are fairly paid for. The obligation to pay arises re and not consensu. Sect. 2. As a rule a contract made with an insane person, known to be Lunatic. insane, cannot be enforced against him; but his estate is held liable for necessaries supplied to him.1 A contract made by a drunken man, known to be drunk, is, as a Drunken rule, voidable; 2 but, as Pollock, C.B., says, a drunkard is liable man. "when sober for necessaries supplied to him when drunk.”3 ... minor. By sect. 1 of the Infants Relief Act, 1874 (37 and 38 Vict. c. 62), Infant or "all contracts . . . for goods supplied, other than contracts for necessaries, and all accounts stated with infants shall be absolutely void."4 The language of that Act is consistent with the view that an infant might be liable on an executory contract to supply him with necessaries, but an infant has never been held liable for breach of contract to accept necessaries, or for necessaries bargained and sold, but not delivered. The Law Lords thought the present section merely declaratory. As the law makes the contract for the infant, and for his benefit, he is only liable to pay a reasonable price, and not any price he may have been led to agree to.5 Under the Married Women's Property Act, 1882 (45 & 46 Vict. c. Married 75), a married woman has full capacity to acquire and dispose of woman. property and to contract. As promisee under a contract she has the same rights as a man, but her liability as promisor is peculiar. She is not personally liable. Her contracts are only enforceable against her in so far as she has separate estate free from restraint on anticipation. Moreover, in the case of contracts made before the 5th of December, 1893, it must be shown that she had available separate estate at the time she made the contract. But as to the latter point, 1 Leake on Contracts, 3rd ed., p. 501; Re Rhodes (1890), 44 Ch. D. 94, C. A. (necessaries); Imp. Loan Co. v. Stone (1892), 1 Q. B. 599, C. A. (contract). As to determination of agency by lunacy, see Drew v. Nunn (1879), 4 Q. B. D. 661, C. A. 2 Leake on Contracts, 3rd ed., p. 505. 3 Gore v. Gibson (1845), 13 M. & W., at p. 625. The term "absolutely void " is inapt, because a person of full age is bound by his contract with an infant. The effect of the Act is to make an agreement by an infant irrevocably voidable at the option of the infant, even after he attains majority. If an infant buys, uses, and pays for goods, which are not necessaries, he cannot recover the money he has paid, Hamilton v. Vaughan (1894), 3 Ch., at p. 594. 5 As to infants' contracts in general, see Leake on Contracts, 3rd ed., p. 466. • Palliser v. Gurney (1887), 19 Q. B. D. 519; Leak v. Driffield (1890), Sect. 2. Power of wife to bind husband. Parent and child. Master of ship. see now the Married Women's Property Act, 1893 (56 & 57 Vict. c. 63), post, p. 168. In certain cases a husband may be liable for necessaries supplied on the order of his wife. When husband and wife are living together the power of the wife to bind her husband is somewhat indefinite. “A married woman," says Mr. Leake, “is presumptively invested with a certain authority to contract as agent for her husband. It is a delegated, not an inherent authority; the wife can bind her husband only as agent, and a party seeking to charge him with a contract of the wife, must prove the authority. The authority may be referred to two sources: cohabitation, during which the wife is presumptively authorised to manage the domestic affairs of the husband; and necessity, caused by the husband refusing or failing to maintain his wife." 1 The italicised propositions seem somewhat inconsistent, and there is authority in support of both. When a wife is separated from her husband, through his misconduct, and he does not make proper provision for her maintenance, she has, by implication of law, authority to bind him for necessaries.2 The wife of a lunatic has no greater authority to pledge his credit than the wife of a sane man.3 A father is not liable for necessaries supplied to his infant child without his authority, nor is the mother, though she have separate estate. But authority or ratification is inferred on very slight evidence. The master of a ship has an implied authority to bind the owner for the price of necessaries supplied for the ship.5 The section, it is to be noticed, deals only with the question of capacity to buy and sell. The saving of the law of principle and agent by sect. 61 (2) covers the cases where one person has an implied authority to act on behalf of another. 24 Q. B. D. 98; Leake on Contracts, 3rd ed., p. 480. As to debts contracted before marriage, see Jay v. Robinson (1890), 25 Q. B. D. 467. As to liability after husband's death for debts contracted during marriage, see Pelton v. Harrison (1891), 2 Q. B. 422. 1 Leake on Contracts, 3rd ed., p. 493. 2 Ibid., p. 494; Wilson v. Glossop (1888), 20 Q. B. D. 354, C. A. 3 Richardson v. Dubois (1869), L. R. 5 Q. B. 51. • Leake on Contracts, 3rd ed., p. 41. 5 Mackintosh v. Mitchison (1819), 4 Exch. 175; and Leake on Contracts, 3rd ed., p. 448. Formalities of the Contract. Sect. 3. sale, how made. 3. Subject to the provisions of this Act and of any Contract of statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth,2 or may be implied from the conduct of the parties.3 Provided that nothing in this section shall affect the law relating to corporations. A written offer to sell goods may be verbally accepted, and vice versa.1 If, however, the parties have put a contract of sale into writing, the ordinary rules of evidence apply. Parol or oral evidence is inadmissible to contradict the terms of the written instrument; but such evidence is admissible to explain it, and, in explaining it, to annex incidents thereto.5 Oral evidence is of course admissible to avoid a contract, whether in writing or not, as for instance to show that it was induced by fraud, or founded on such mistake as to prevent what appears to be a contract ever having been a contract at all." In some cases by common law, and in others by statute, a corporation 1 See next section reproducing the Statute of Frauds, and see the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60, ss. 24, 26, 65, and Sched. I. (A)), transfer of British ships and shares therein by bill of sale only. As to sale of sculpture with copyright, see 54 Geo. 3, c. 56. 2 Blackburn on Sale, pp. 43-45; Benjamin on Sale, 4th ed., p. 180; Lockett v. Nicklin (1848), 2 Exch. 93; 19 L. J. Ex. 403. 3 Brogden v. Metropolitan Ry. Co. (1877), 2 App. Cas. 666, H. L.; cf. Beverley v. Lincoln Gas Co. (1837), 6 A. & E. 829; Cornish v. Abington (1859), 28 L. J. Ex. 262. As to the construction of such contracts, see Watkins v. Rymill (1878), 10 Q. B. D. 178, 188 (sale at horse repository). 5 Taylor on Evidence, §§ 1058, 1067; Stephen's Law of Evidence, art. 90. As to incidents annexed by usage, see Syers v. Jones (1848), 2 Excb. 111, usage to sell by sample; Brown v. Byrne (1854), 3 E. & B. 703, usage to deduct discount; Field v. Lelean (1861), 30 L. J. Ex. 168, Ex. Ch., usage not to deliver till time of payment arrives. See further notes to Wigglesworth v. Dallison, 1 Smith, L. C., 9th ed., p. 569, and post, p. 107. As to fraud, see Chanter v. Hopkins (1838), 4 M. & W., at p. 406; Kennedy v. Panama Co. (1867), L. R. 2 Q. B. 580. As to mistake, see Boulton v. Jones (1858), 27 L. J. Ex. 117; Raffies v. Wichelhaus (1864), 33 L. J. Ex. 160; Smith v. Hughes (1871), L. R. 6 Q. B. 597. Sect. 3. Contract of sale for 107. and upwards can only contract by instrument under seal.1 The proviso saves this rule. 4.-(1.) A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something and 9 Geo. in earnest to bind the contract, or in part payment, or [29 Car. 2, c. 3. s. 17. 4, c. 14, s. 7]. unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. (2.) The provisions of this section apply to every such [9 Geo. 4, c. 14, s. 7.] contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. (3.) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognises a pre-existing contract of sale whether there be an acceptance in performance of the contract or not.2 (4.) The provisions of this section do not apply to Scotland. Illustrations. 1. B verbally agrees to buy certain cabinets, and arranges that a pound, which had been overpaid by him on a previous transaction, shall go on account of the cabinets. This is not a part payment within the meaning of sub-section (1).3 1 Leake on Contracts, 3rd. ed., p. 506. 2 Page v. Morgan (1885), 15 Q. B. D. 228, C. A.; Benjamin on Sale, 4th ed., p. 149; Abbot v. Wolsey (1895), 2 Q. B. 97, C. A. (taking sample after delivery sufficient). 3 Norton v. Davison (1899), 1 Q. B. 401, C. A. |