Labour Law

Capacity to Contract.

In considering whether a contract is enforceable, it is necessary also to enquire into the capacity of the parties to bind themselves by contract. As regards contracts of service the only case of incapacity we need consider here is where one of the parties is an infant (i.e., under 21 years of age). Married women have not suffered any incapacity to bind them selves by contracts of service or freely to dispose of their wages since the passing of the Married Women's Property Acts 1882 and 1893. Where an infant enters into a contract of service it is necessary to see whether it satisfies the general rule of law that no contract will be enforced against an infant unless it is for his benefit. Contracts to learn a trade or serve for wages are prima facie for an infant's benefit and consequently will be enforced un less they are wholly disadvantageous to him (Corn v. Matthews [1893], I Q.B. 310). The mere fact that some of the terms are un favourable does not necessarily vitiate the whole contract. It is necessary to consider whether the contract as a whole was for the advantage of the infant (Clements v. London and North Western Railway Co. [1894], 2 Q.B. 482).

A few rules relating to apprenticeship may be noted here. Since the repeal of the Elizabethan Statute of Apprentices apprentice ship has been purely a voluntary matter in England and no par ticular formality is required for making a contract of apprentice ship. But since the term of apprenticeship is commonly for more than a year such a contract must as a rule be in writing (see be low). A parent cannot bind his child an apprentice without the child's consent and the indenture (if any) must be signed by the apprentice, not merely by thi parent or guardian (Rex v. Arnesby [1820], 3 B. and Ald. 584). An apprentice cannot be dismissed for misconduct as a general rule, unless this is expressly allowed by the contract. But a master may correct his apprentice's faults by moderate chastisement (Penn v. Ward, 1835, 2 C.M. and R. 338). The apprentice may quit his master's service if he has reasonable apprehension of grievous bodily harm at the master's hands (Halli well v. Counsell, 1878, 38 L.T. [N.S.] 176). The sickness or in capacity of the apprentice does not relieve the master of his obli gations under the contract, e.g., to provide for the apprentice and pay him wages (Patten v. Wood, 1887, 51 J.P. 549). A contract of apprenticeship expires on the death of the master except where it is so drawn as to require the apprentice to continue to serve the master's representatives carrying on the same trade (Cooper v. Simmons, 1862, 7 H. and N. 707). An apprentice cannot re cover any part of the premium from the representatives of his deceased master unless there is an express stipulation in the con tract enabling him to do so. Disputes between apprentices and their masters are regulated by the Employers and Workmen Act 1875 (see p. 551). The effect of bankruptcy on a contract of apprenticeship is dealt with by s. 34 of the Bankruptcy Act Statute Law.—The general rule of common law that the

parties to a contract of service are free to make what terms they will has been considerably modified by Acts of parliament. Some of these, adopted expressly in the interests of the worker, might be more properly included under the heading of "protective" labour law, in so far as contraventions render the employer liable to quasi-criminal prosecution. But in so far as they also give the worker a civil right of action or tend to strengthen his position as contracting party, they may conveniently be considered rather from the contractual point of view. The statutes in question either require certain contracts of service to be in writing or prescribe certain formalities for their execution, or they place restrictions on the nature of the consideration or on the place where wages are to be paid; or they provide means for fixing the minimum rate of wages to be paid, or require the employer to give the workers certain facilities for checking or calculating the amounts due to them. It will also be convenient to note in this connection the special procedure provided by statute for settling disputes arising out of the contractual relation between an employer and a worker. The statutes here in question are considered in the following paragraphs.

Statute of Frauds.

Section 4 of the Statute of Frauds (1677) provides that no action shall be brought to enforce certain con tracts "unless the agreement upon which such action be brought or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." The only type of con tract affected by this section which could possibly include a con tract of service is many agreement that is not to be performed within the space of one year from the making thereof." Any such contract of service if not in writing and signed will be unen forceable either against both parties or against whichever has not signed it. The contract is not, be it noted, entirely void like an illegal contract, but only unenforceable. This section of the Statute of Frauds has been held to apply where it is clear from the terms of a contract that complete performance within a year is impossible by both parties, or even by one party where the time for performance by the other is indefinite (Reeve v. Jennings [I9Io], 2 K.B. 522). Even an agreement to serve for two years subject to six months' notice on either side during that period, must be in writing although the service might be brought to an end within a year (Hanau v. Ehrlich [1912], A.C. 39). An agree ment made one day to enter upon a year's service the same day or the next day does not come under the statute, as it will be per formed within the space of one year. But if the year's service is to begin at any subsequent date the contract must be in writing (Britain v. Rossiter, 1879, I I Q.B.D. 123 ; Smith v. Gold Coast and Ashanti Explorers Ltd. [19°3], 1 K.B. 285).