Kitatta Abdul- Islamic University In Uganda- LLB I-Law of Contract I – Formation of a contract-Capacity to

contract.

ISLAMIC UNIVERSITY IN UGANDA-KAMPALA CAMPUS

LLB I

LAW OF CONTRACT I

CAPACITY TO ENTER INTO A CONTRACT.

Refer to S. 57 of The Contracts Act No. 7 of 2010

Capacity in refers to the ability of a contracting party to enter into legally
binding relations.

The general rule of law is that any person is competent to bind himself to any
contract he chooses to make, provided that it is not illegal or void for reasons
of public policy. At common law there are exceptions to this rule in the case of
corporations, minors, mentally incompetent and intoxicated persons.

1) Minors
Refer to Art. 34(5) of the Constitution & S. 11 of The Contracts Act No.
7 of 2010
The general principle is that a contract made by a minor with an adult is
binding on the adult but not on the minor. If, after attaining his majority, he
ratifies it by an act confirming the promise he made when a minor, he is bound.
There need be no consideration for the act of ratification. A contract by a minor
is not void and any money or property transferred by him under the contract
can be recovered only if there has been a total failure of consideration. There
are three exceptional cases where a minor is to some extent bound.
The rationale for the above principle was stated by Geoffrey Kiryabwire J. in
Abdul Basit Sengooba & Ors V Stanbic Bank Ltd HCCS 0184 of 2001
when he observed that,

“Review of the legal authorities on the subject of the law of minors’

contracts would suggest that the primary objective of the law is the
protection of minors from the consequences of their own
unexperience.”
a) Contracts for necessaries

Minors are legally bound where a contract supplies them with "necessaries” or
goods and services which are deemed necessary or beneficial to them.This
obligation is codified in the Sale of Goods Act, in S. 3, where it is stated:

Where necessaries are sold and delivered to a minor ... he must pay a
reasonable price for them.

Necessaries in this section means goods suitable to the condition of life of such
infant (or minor)... and to his actual requirements at the time of sale and
delivery.

Necessaries therefore are those things without which a person cannot

reasonably exist and include food, clothing, lodging, education or training in a
trade and essential services. The condition of life of the minor means his social
status and his wealth. What is regarded as necessary for one minor might not
be for another. Whatever the minor's status, the goods must be suitable to his
actual requirements-if he already has enough fancy waistcoats, more cannot be
necessary.

The common law holds that necessaries are those items which are essential for
a minor, so that it is reasonable for the minor to be bound by a contract for
their supply. S.3 Sale of Goods Act This section largely reproduces the common
law definition. The case law on necessaries for minors illustrates and explains
what necessaries are:

i. A horse for stag hunting is not a necessary but rather it is a luxury or

amusement: Skrine v. Gordon
ii. Jewelled cufflinks are not a necessity: Ryder v. Wombell
iii. 11 fancy waistcoats are not necessary where the minor has sufficient
clothing already: Nash v. Inman
iv. Motor boats are not necessary: Prokopetz v. Richardson’s Marina
v. A vehicle for work or domestic purposes may be necessary: First Charter
Financial Bank v. Musclow
vi. Books for a student are necessaries: Soon v. Wilson
vii. Services are not covered by section 3 but may be necessaries under the
common law. In the case of Chapple v. Cooper, the funeral expenses of a
spouse were held to be necessaries. This case provided a definition of

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 necessaries:

“Things necessary are those without which an individual cannot

reasonably exist. In the first place, food, raiment, lodging and the like.
About these there is no doubt. Again as the proper cultivation of the
mind is as expedient as the support of the body, instruction in art or
trade, or intellectual, moral and religious information may be a
necessary also.”

Legal advice is necessary where is proves to be required for the minor: Helps v.
Clayton.

It is clear from the above case law that a necessary is that which is genuinely
required by the minor, so that there is no danger of injustice of exploitation
caused by the enforcement of an agreement for its supply. Moreover, even if
an item is necessary, a contract for its supply will not be enforced by the court
except on reasonable terms: Section 2 1893 Act and Fawcett v. Smethurst-
where the hire of a motor car was necessary, the terms were onerous and
therefore overall the contract was held not to be for the benefit of the minor.

In Nash v Inman (1908) [1908] 2 KB 1. The plaintiff was a tailor; the

defendant, who was an undergraduate at Cambridge University, had ordered
11 fancy waistcoats. When the plaintiff sued for payment, the defendant
pleaded lack of capacity. The plaintiff argued that the waistcoats were in the
category of necessaries. It was held that there was no doubt that they were
among the class of things (that is, clothing) capable of being necessaries. It
was up to the plaintiff to prove, however, that the defendant was not already
adequately supplied with items of this kind, which he was unable to do. The
plaintiff was unable to enforce the contract.

At common law if a contract is not for the supply of necessaries of a beneficial

contract of service, then the contract is voidable at the instance of the minor. If
the contract benefits the minor but also imposes recurring obligations then
they can be avoided by the infant but require him to repudiate the contract by
some positive act before coming of age or within a reasonable time thereafter.
All other contracts are enforceable by the minor, but not against him, unless
the minor positively affirms the contract within a reasonable time after coming
of age.

The nature of the minor's liability for necessary goods is uncertain. The fact
that the Sale of Goods Act makes him liable only for goods "sold and delivered"

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 and to pay, not any agreed price, but a reasonable price, suggests quasi-
contractual liability-he must pay, not because he has contracted to do so, but
because the law requires him to recompense the seller for a benefit conferred
and accepted. Some dicta support this view but others treat the minor's liability
as contractual.

In Roberts v Gray [1913] KB 520, CA, a minor was held liable for his failure
to perform a contract for a tour with the plaintiff, a noted billiards player. It was
a contract for the instruction of the minor. The contract was wholly executory
but it was held that the contract was binding on him from its formation. It may
be thought that there is a distinction between necessary goods and necessary
services but this is difficult to justify logically or historically. Perhaps the
contract in Roberts v. Gray belongs more properly to the category of beneficial
contracts of service, below.

A contract is not binding on a minor merely because it is proved to be for the

minor's benefit; but a contract which would otherwise be binding as a contract
for necessaries is not so if it contains harsh and onerous terms: Fawcett v.
Smethurst (1914) 84 LJKB 473, (Atkin J).

b) Beneficial contracts of service

People who are under the age of majority, and in particular those who are over
the age of compulsory full-time education (that is, those who are 16 or above),
must have the possibility of being able to earn a living.12 Consequently, the
law recognises that contracts of employment, training or apprenticeship may
be enforceable. The contract, taken as a whole, must not, however, be
oppressive. De Francesco v Barnum(1889) 45 Ch D 430., for example,
concerned a girl of 14 who entered into a contract with the plaintiff as an
apprentice dancer. The contract was to last for seven years. During its
operation, the girl was forbidden to marry, and could not accept any
professional engagements without the plaintiff’s consent, but, on the other
hand, was not guaranteed work by the plaintiff. The plaintiff could decide to
terminate the agreement virtually at his discretion. The Court of Appeal held
that the stipulations were of an extraordinary and unusual character, which
gave the plaintiff inordinate power without any corresponding obligation. The
agreement was, as a whole, not beneficial, and was thus unenforceable. The
inclusion of some disadvantageous terms, however, will not necessarily be
fatal. In Clements v London and NW Railway[1894] 2 QB 482, C was
employed as a porter. Under his contract he agreed to forego his rights under
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 the Employers’ Liability Act 1880. Instead, he agreed to join an insurance
scheme to which the employer contributed. The Court of Appeal held that
although the insurance scheme had some disadvantages (for example, lower
rates of compensation), it also had wider coverage than the Act in terms of the
types of accident included. On balance, the court was not prepared to say that
the contract of employment as a whole was disadvantageous.

Beneficial contracts of service may be enforced against a minor. This exception

originated to allow minors to enforce apprenticeships etc. the justification for
enforcing such contracts is that De Francesco v. Barnum – where the minor
undertook to sing but the other party undertook no commitments to provide
work or teach the minor yet restrained the minor’s freedom of action in a
number of ways, including prohibiting her from marrying. they are beneficial to
the minor.

c)Other contracts related to work.

The rules about beneficial contracts of service extend to contracts related to
the way in which the minor earns a living. Thus, in Doyle v White City
Stadium [1935] 1 KB 110 a contract between a boxer and the British Boxing
Board of Control, under which the boxer received a licence in return for
agreeing to abide by the Board’s rules, was held to be enforceable, despite the
fact that in this particular case the rules operated to the boxer’s disadvantage,
in that they led to his forfeiting his ‘purse’ for a fight because he had been
disqualified (whereas he would have still received it if he had simply been
defeated). This decision was relied on in Chaplin v Leslie Frewin [1966] Ch
71; [1965] 3 All ER 764 in which the court upheld a contract relating to the
production of the minor’s autobiography (he was the son of Charlie Chaplin).
The contract enabled the minor to earn money, and to make a start as an
author, and for that reason was to be regarded as beneficial. The contract
must, however, in some way contribute to the minor’s ability to earn a living.
This was the view of the High Court in Proform Sports Management Ltd v
Proactive Sports Management Ltd [2007] 1 All ER 542. a case involving
the footballer, Wayne Rooney.

Trading contracts will not be enforced. In Mercantile Union Guarantee v Ball

[1937] 2 KB 498 the court refused to enforce a hire purchase contract made
by a minor who ran a haulage business. The minor businessperson is therefore
at a considerable disadvantage, as compared with the minor employee. Once
the age of the minor is known to others with whom he or she wishes to trade, it

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 is unlikely that any contracts will be forthcoming. The reason for this is in line
with the general paternalistic approach taken in this area, in that it is felt
undesirable that the minor should enter into contracts carrying the high
financial risks which will often be involved in business agreements.

Certain contracts are regarded as being valid, unless the minor repudiates
them, either during minority or within a reasonable time of becoming 18. These
are, in general, contracts which involve the minor obtaining an interest in
property which involves continuous or recurring obligations. So this rule
applies, for example, to contracts involving obligations of shareholding, such as
the duty to pay ‘calls’; That is, a demand to pay money due in relation to a
share price payable by installments: Dublin and Wicklow Railway v Black
(1852) 8 Ex 181. partnership agreements; Goode v Harrison (1821) 5 B &
Ald 147 marriage settlements; Edwards v Carter [1893] AC 360 and
contracts relating to interests in land, such as leases. Davies v Beynon-
Harris (1931) 47 TLR 424 In relation to the last category, it should be noted
that s 1(6) of the Law of Property Act 1925 prevents a minor from holding a
legal estate in land. The interests concerned will therefore always be equitable.
The repudiation of one of the above contracts during minority is always
possible. What constitutes the period after reaching 18 for which this right
subsists is not easy to determine. The House of Lords in Edwards v Carter
simply felt that repudiation must occur within a ‘reasonable’ time and that, in
the particular case, a period of four years and eight months was too long to be
reasonable. It is likely to be regarded as a question of fact in each case as to
what is acceptable, and it does not seem possible to lay down any clear rules
on this point.

d) Acquisition of property with obligations.

When a minor acquires a subject of a permanent nature with certain

obligations attached to it-such as a leasehold, or shares in a company-he is
bound by the obligations as long as he retains the subject. He must pay the
rent or calls on the shares: London & North Western Railway v M'Michael
(1850) 5 Ex 114. The contract is voidable by the minor-he may repudiate it
any time during his minority or within a reasonable time thereafter.

In Davies V Beynan Harris [1931] 47 TLR 424 it was held that contracts
which give a minor a benefit of a permanent nature like a contract for property
is voidable at the instance of the minor until he/she is of majority age.

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 It is uncertain whether avoidance here means rescission ab initio or avoidance
of only future obligations; but, whether it is retrospective or not, it seems that
the minor cannot recover money which he has already paid unless there has
been a total failure of consideration: Steinberg v. Scala Ltd [1923] 2 Ch
452, CA.

e) Voidable contracts
If a minor repudiates a voidable contract, this will not affect obligations which
have already fallen due and have been performed. Money or property
transferred by the minor will be irrecoverable, unless there has been a total
failure of consideration. Corpe v Overton (1833) 10 Bing 252. The position
as regards liabilities which have fallen due, but have not been performed at the
time of the repudiation, is less clear. The point was considered, obiter, in North
Western Rail Co v McMichael. (1850) 5 Ex 114. Parke B took the view that
a call on shares which had become due was of no effect once repudiation had
taken place. In other words, the repudiation was, to that extent, retrospective.

f) Enforceable contracts.
Where a minor has received necessary goods and services, what is the
obligation as regards payment? As far as goods are concerned, the position is
governed by s 3(2) of the SGA, which states that:

“Where necessaries are sold and delivered to a minor . . . he must pay

a reasonable price for them.”

Two points emerge from this. First, the liability only arises after delivery. The
fact that ownership has passed under the SGA rules for ‘passing of property’ is
irrelevant. Second, the liability is only to pay a reasonable price, which is not
necessarily the contract price. This was also the line taken on this issue by
Fletcher Moulton LJ in Nash v Inman [1908] 2 KB 1 It seems, however, that
the position may be different as regards necessary services.

The relevant authority is Roberts v Gray [1913] 1 KB 520. The defendant

was an aspiring billiards player who made a contract to go on a world tour with
the plaintiff, who was a leading player. The defendant, however, backed out
before the tour began. The plaintiff sued for the losses that he had incurred in
relation to the organisation of the tour. Held: The Court of Appeal regarded this
as a quasi-educational contract and therefore within the scope of a contract for
necessaries. The defendant argued that, nevertheless, no damages should be
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payable, because he had received nothing under the contract. By analogy with
contracts for necessary goods, only where services had actually been supplied
should a liability to pay for them arise. The Court of Appeal refused to accept
this. Hamilton LJ commented at 530 that,

“I am unable to appreciate why a contract which is in itself binding,

because it is a contract for necessaries not qualified by unreasonable
terms, can cease to be binding because it is still executory. Damages
were awarded to the extent of the plaintiff’s full losses in organising
the abortive tour.”

Although it is perfectly possible for a minor to be liable in tort, there being no

age limit in relation to tortious liability, the courts will not allow such an action
to be used as a means of indirectly enforcing an otherwise unenforceable
contract. It is for this reason that it has been held that a minor who has
misrepresented his or her age in order to obtain a loan Leslie Ltd v Sheill
[1914] 3 KB 607 or non necessary goods Stocks v Wilson [1913] 2 KB
235 cannot be sued in deceit. In other situations, it may be more difficult to
decide exactly when indirect enforcement of the contract would result from a
successful tortious action.

Why should a minor who deliberately misrepresents his or her age in

order to make a contract be immune from liability on the contract

The first case to consider is Jennings v Rundall (1799) 8 Term Rep 335.
The defendant was a minor who had hired a horse for a short journey. In fact it
was taken on a long journey, and suffered injury as a result of this over-riding.
The plaintiff’s action in tort failed on the basis that this was in substance an
action for breach of contract, which would not have been sustainable because
of the defendant’s minority. This must be contrasted with Burnard v Haggis
(1863) 14 CBNS 45; 143 ER 360 This again concerned the hire of a horse to
a minor. The defendant had said that he did not require a horse for jumping,
and indeed was specifically told by the owner that he would not let the
particular horse out ‘for jumping or larking’. The price charged was apparently
the lower fee appropriate for riding, rather than the higher amount which would
have been charged for jumping. The defendant lent the horse to a friend who
used it for jumping with the result that the horse fell and was killed. The
defendant was held liable in tort to the owner. The distinction between this
case and Jennings v Rundall appears from the judgment of Willis J, who

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 commented that the act of riding the mare into the place where she was killed
was as much a trespass as if:

“. . . without any hiring at all, the defendant had gone into a field and
taken the mare out and killed her. It was a bare trespass, not within the
object and purpose of the hiring.”

Thus, the test is the ‘object and purpose’ of the contract. Did the tortious act
occur as part of the performance of the ‘object and purpose’? If so, there will
be no liability. So, in Jennings v Rundall, the object and purpose was riding the
horse on a journey. In Burnard v Haggis, however, jumping was outside the
object and purpose, and the defendant was therefore liable. This approach has
been confirmed by later cases. Thus, in Fawcett v Smethurst (1914) 84
LJKB 473 the taking of a hired car on a longer journey than indicated at the
time of hire was still within the contract’s ‘object and purpose’.

However, in Ballett v Mingay [1943] 1 All ER 143 the defendant, who had
hired a microphone and amplifier and was found to have lent them to a friend,
was held to be altogether outside the scope of the contract, and the defendant
was therefore liable in tort. Insofar as there is immunity, it extends not only to
torts committed in the course of a contract but, as noted above, also to fraud
which induces a contract. Thus, fraudulent misrepresentation of the minor’s
age does not stop the minor from pleading lack of capacity, and avoiding the
contract. Nor does it give the adult party a right to bring an action in tort for
deceit. Where property had been transferred as a result of such fraud, equity
had developed remedies in certain situations to allow the adult party to recover
it. Stocks v Wilson [1913] 2 KB 235 Although this equitable remedy is still
available in theory, the enactment of the more general provision relating to
restitution in s 3 of the MCA 1987 means that it is of virtually no practical
importance, and so is not discussed further here.

2) Companies.

Refer to Ss. 21, 51(1) & 52 of The Companies Act No. 1 of 2012

A company incorporated under the Companies Act could, until recently, only
make such contracts as were within the scope of the objects set out in its
memorandum of association. Anything beyond that was ultra vires and void In
the leading case of Ashbury Railway Carriage and Iron Co. Ltd v. Riche
(1875) L.R. 7 H.L. 653 the objects set out in the company's memorandum
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 were "to make and sell, or lend on hire, railway carriages and waggons, and all
kinds of railway plant, fittings, machinery and rolling stock; to carry on the
business of mechanical engineers and general contractors; to purchase, lease,
work and sell mines, minerals, land and buildings; to purchase and sell as
merchants, timber, coal, metals, or other materials, and to buy any such
materials on commission or as agents." The directors purchased a concession
for making a railway in Belgium and purported to contract with Riche that he
should have the construction of the line. Riche's action for breach of the
alleged contract failed since the House of Lords held that the construction of a
railway, as distinct from rolling stock, was ultra vires the company and that
therefore the contract was void. Even if every shareholder of the company had
expressed his approval of the act, it would have made no difference, for it was
an act which the company had no power, in law, to do.

3) MENTAL DISABILITY

Refer to Ss. 11 (1) (b), 12, 119(b) & 120(b) of The Contracts Act No. 7
of 2010 & S. 3 of The sale of goods Act

The law also provides protection for those who make contracts while under
some mental disability. There are, of course, degrees of mental disability, unlike
the position in relation to minors, where the person is either under 18 or over
18. English contract law recognises three categories. First, there are those
whose mental state is such that their affairs are under the control of the court,
by virtue of the Mental Capacity Act 2005. Since the court effectively takes
over the individual’s power to make contracts, any contracts purported to be
made personally by the individual will be unenforceable against him or her.
Second, there are those whose mental state is such that, although they are not
under the control of the court, they are unable to appreciate the nature of the
transaction they are entering into. Contracts made by people in such a
condition will be enforceable against them (even if the contract may in some
sense be regarded as ‘unfair’), unless it is proved that the other party was
aware of the incapacity. This was the view taken in Imperial Loan Co v Stone
[1892] 1 QB 599 In New Zealand, some authorities suggested that a contract
with such people might be unenforceable, even if the other party was unaware
of the disability, if the contract could said to be ‘unfair’ See, for example,
Archer v Cutler [1980] 1 NZLR 386. This line of authority was rejected by
the Privy Council in Hart v O’Connor, [1985] 2 All ER 880. This involved the
sale of property at significantly less than the market value which involved the
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sale of property at significantly less than the market value. It was there held
that Imperial Loan Co Ltd v Stone still represented the true position under the
common law. In other words, for the agreement to be set aside on the basis of
the mental disability, it must be shown that this disability was apparent to the
other party at the time of the contract. Lord Brightman summed up the position
as follows:

“. . . the validity of a contract entered into by a lunatic [sic] who is

ostensibly sane is to be judged by the same standards as a contract
made by a person of sound mind, and is not voidable by the lunatic or
his representatives by reason of ‘unfairness’ unless such unfairness
amounts to equitable fraud which would have enabled the complaining
party to avoid the contract even if he had been sane.”

The third category consists of those people who are capable of understanding
the transaction, but who are, as a result of some mental disability, more
susceptible to entering into a disadvantageous contract. Contracts made by
such people are binding, unless affected by the rules relating to ‘undue
influence’. Thus, a person who lacks capacity to contract for the supply of such
goods and services must pay a reasonable price for them if they are supplied.
‘Necessary’ means suitable to a person’s condition in life and to his or her
actual requirements at the time when the goods or services are supplied.
These rules will apply to people in both of the first two categories listed above.

In John Patrick Machira V Patrick Kahiaru Muturi HCCS No. 113 of 1999
(Kenya) R. Kuloba J. stated that,
“It is a very serious thing to say of, and concerning a person, that such
person is a person of unsound mind or suffers mental disorder. The law
presumes that every person is mentally sound, unless and until he is
proved mentally disordered. And, even where one person is shown to
be unsound mind one must always bear in mind that the degrees of
mental disorder are widely variable, and incompetency to do any legal
act or inability to protect one’s own interests, must not be inferred
from a mere name assigned to the malady from which a person may
be suffering. The validity of ordinary contracts entered into by persons
of unsound mind depends mainly on the circumstances which
accompany the act. If there is nothing unreasonable in the conduct of
the person of unsound mind and the party with whom he contracts has
no knowledge or suspicion of his mental disorder, the contract will be
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 binding on the person of unsound mind and his representatives…A
contract with a person of unsound mind is valid and enforceable
against him if at the time when the agreement was made he was not of
unsound mind; and soundness of mind may be presumed if it appears
that the negotiation of the agreement was conducted by him with
apparent prudence, sanity, and judgment, although in fact he was
insane both before and after the transaction. The general rule is that
when a person of apparently sound intellect enters into an ordinary
contract, and the parties cannot be restored to their former condition,
the mere fact that one of them was at the time non compos mentis is
no ground for setting aside the contract. But contracts of a person who
is non compos mentis may be avoided when there is proof that his
condition was known to the other party. There is no right to avoid a
contract made with a person of unsound mind unless it is proved that
the other party either knew that he was of unsound mind or knew such
facts about him that the other party must be taken to have been aware
that he was of unsound mind. Moreover, supervening mental disorder
does not release a person from his obligations under a contract unless
the nature of the mental disorder renders the performance of the
contract impossible…All these propositions are really elementary and
do not require a citation of authority. They are sound propositions
which have stood the test of time. They are found in a long range of
cases, including, amongst others, cases like Molton Vs Camroux
(1849)4 Exch. 17; Imperial Loan Co v Stone [1892]1 QBD 599;
and York Glass Co. v Jubb, (1925), 42 TLR 1 . They all show, in
addition, that degrees of mental order are widely variable, with some
persons of unsound mind being as fully competent as same persons to
observe and grasp facts and to understand their obligations. Fixing the
degree and form of mental disorder which shall free a person from a
contract which shall free a person entered, is not, therefore a light
matter, and cannot be automatically inferred from a mere name
assigned to a malady from which a person is said to be suffering. It
must be decided by the special condition and the kind and degree of
intellectual power of the patient at the material point of time. His
intelligence quotient must be put in evidence, as at the material time.

R. Kuloba J. further stated that,

“It is well known, that the competent of an individual to make a

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 contract or to indulge in other civil rights, is in general lost if mental
disorder or “insanity” can be shown to have been present and to have
produced defective judgment. The mere presence of mental disorder,
however, may not necessarily destroy competence in a particular
instance, and it does not do so if the defect does not touch the issue at
stake. It is within the power of the court to decide. Evidence must be
given on the mental state at the material time…It does not need
saying that in the general theory of contract, it is postulated that in
order to make a contract each contractant must have a free and full
consent reached by an act of reason after due deliberation. If this is
not so, the contract may be declared void. But it is equally elementary
and requiring no restating, that if the mentally disordered person
makes a contract during a lucid period, then the contract is valid
despite further relapses of the illness; and, further, if mental disorder
develops in an individual after he has made a contract, the illness does
not release either party from the terms of the contract unless
circumstances are such that it is quite impossible for the insane
individual to fulfill the terms of the contract.”

4) INTOXICATION

Refer to Ss. 11 (1) (b), 12, 119(b) & 120(b) of The Contracts Act No. 7
of 2010 & S. 3 of The sale of goods Act

Those who, as a result of drunkenness, whether voluntary or involuntary, are

‘incompetent to contract’ are, by virtue of s 3 of the SGA, liable to pay a
reasonable price for necessary goods ‘sold and delivered’. ‘Incompetent to
contract’ presumably means ‘unable to understand the nature of the
transaction’. See Gore v Gibson (1843) 13 M & W 623. Beyond this, there
appears to be little authority on contracts made by those who are intoxicated.
It is assumed, however, that similar rules apply as in the case of incapacity
through mental disability. This means, amongst other things that, in contrast to
the position in relation to minors, there must be an awareness of the incapacity
on the part of the other party before the contract will be unenforceable. Such
cases as there are on this topic are concerned with intoxication through the
consumption of alcohol. There seems no reason why the same rules should not
apply to a person who is incapacitated through drug taking.

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