Family Law Newsletter
May 2012
Can children sign mobile phone contracts? Mobile phones have become so ubiquitous that it’s a bit of a shock when we come across a person who doesn’t actually own one, and in fact, ownership of mobiles has become so prevalent that even children are just as likely to be seen sporting the latest smartphones, and playing ‘Angry Birds’ like no tomorrow. Which conveniently leads us to the main point of this piece: can a person under the age of 18 sign a contract for telephone or internet services? The latest smartphones are obviously a desirable product for many people, and kids are definitely not immune from the lure of the latest gadgets. Additionally, we’ve also probably seen/read/heard the horror stories involving minors who have entered into telephone contracts, and being billed exorbitant amounts of money, but can kids really sign contracts for telephone and internet services? Read on to find out. Can a minor sign a telecommunications contract? One of the fundamental precepts of contract law is that a person – usually someone over the age of 18 – must have the capacity to enter into a binding agreement by having an awareness of the terms and conditions of the contract. However, in most jurisdictions, the law does not view a minor as having the legal capacity to enter into a contract, except if the agreement that has been entered into is considered as a necessity. Interestingly, New South Wales is the only State that grants the right for minors to enter into all manners of contractual relationships, and the right is given force via the Minors (Property and Contracts) Act only on the proviso that the contract that has been agreed to is actually for their benefit. The definition of ‘necessity’ As alluded to earlier, minors who enter into contracts for necessities may be bound by the terms of the agreement in all States, but what does contracts for “necessities” actually mean? Using s 7 of Victoria’s Goods Act as a basis, items that are considered to be “suitable to the condition in life” are considered as goods of necessity, and can include anything that is needed to maintain the type of lifestyle that the child is accustomed. It’s also intriguing to note, that what is considered as a necessity extends further than what we would normally perceive as essential items to life: such as food; clothing; shelter; and access to education. What we have instead are items considered by law as necessities can be interpreted rather broadly and can encompass almost anything. Are contracts for telephone or internet services signed by a minor enforceable? Having established that a child can enter into a contract for goods which are considered as a necessity, the question still remains of how telephone and internet contracts will be treated which have been signed by a minor. In deciding the validity of the contract, there are number of things that are considered when making an assessment, such as: - · the age of the minor
- · how the service is used
- · the nature of the service
- · the social and economic status of the minor
- · whether the minor has entered into any past contractual agreements.
If it is determined that the phone or internet service is considered a necessity, the contract may be judged to be binding. The position in New South Wales is slightly different when judging whether a contract entered into by a minor is enforceable. Because New South Wales already grants minors the capacity to be bound by a contractual agreement, in making a determination on the validity of a contract rests on an analysis of whether or not the child has benefited, or was advantaged from the use of the service. We’d like to assume that the law will prevent minors from entering into binding contractual agreements, but it may not always be the case. If you have any issues regarding your child and need assistance, always seek the appropriate legal help.
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