The term is used to determine whether or not a contract entered into by a minor is voidable or not at the child's option, as contracts for necessaries of life are not.
But the common law has never drawn an all-inclusive definition of a contract for the necessaries of life, nor has it wanted to. It prefers to let individual judges seized with specific cases to use their discretion to determine, taking into account the unique circumstances of the child at the time, and of the product or service, whether a contract is, or is not, for necessaries of life.
Citing Barnes v Toye and Johnstone v Marks, Strouds writes:
"The necessaries for which an infant may contract liability are not confined to such articles as are necessary for the support of life; but extend to such articles as are reasonably fit to maintain the particular person in his state, station and degree and are suitable to his fortune and circumstances...."
Some jurisdictions, such as Ontario, have attempted to imposed a started definition in their statutes and requiring, for example, that the goods having been delivered to the child. §3 of the provincial Sale of Goods Act:
".... where necessaries are sold and delivered to a minor ... he or she shall pay a reasonable price therefor.
"Necessaries means goods suitable to the conditions in life of the minor or other person and to his or her actual requirements at the time of the sale and delivery."
The Canadian author Fridman used these words:
"What are necessaries ... everything depends upon the social and economic position of the minor as well as upon what would be regarded as essential for life.
"Necessaries ... includes more than goods.... (A)n infant may bind himself to pay for his necessary meat, drink and clothing, medicines and likewise for his teaching or instruction."
In Roberts v Gray, the court said that:
"... when you get a contract for labour, and you have a remuneration of wages, that contract, I think, must be taken as prima facie binding upon an infant."
In the context of family law, the term is also used in the Canadian Divorce Act, holding parents liable to pay child support for a child who is unable to otherwise obtain the necessaries of life. Present-day social secutiry or welfare regimes have firmly put this term into disuse in the context of family law.
In the area of criminal law, note §215 of Canada's Criminal Code:
"Every one is under a legal duty as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years (and) to provide necessaries of life to their spouse or common-law partner...."
In R v M, the Ontario Provincial Court noted that in regards to the criminal law:
"... necessaries of life ... generally have meant such necessities as tend to preserve life."
REFERENCES:
- Barnes v Toye 13 QBD 410
- Duhaime, Lloyd, Contracts With Children
- Fridman, G., The Law of Contract in Canada, 4th Ed. (Toronto: Carswell, 1999), pages 154-156
- Johnstone v Marks 19 QBD 509
- Roberts v Gray (1913) 1 KB 520
- R v M 128 CCC 3d 149 and also at 18 CR 5th 319 (ONPC, 1998)
- Sale of Goods Act, Revised Statutes of Ontario 1990, Chapter S.1
- Strouds, F., The Judicial Dictionary of Words and Phrases Judicially Interpreted (London: Sweet and Maxwell, 1890).