A Comparative Analysis of the Contractual Capacity of Infant under the Common and Islamic Laws

Contractual Capacity is one of the enablers of any binding contractual undertaking recognized by law and enforceable by the courts. Generally, any person with capacity can enter into a contract. However, this general position admits of some exceptions and as such, in some cases, it may not apply with equal strength; that is to say, some certain category of persons by law, are accorded special protection, who save for the law, may be exploited or defrauded during the bargaining process leading to the formation of a binding contract. This protected persons are infants, lunatics, illiterates and drunkards. It is trite, that one of the basic and important principles of the law of contract is that for there to be a binding agreement that the courts will enforce, all the parties must possess the requisite contractual capacity- in addition to the other elementary but necessary elements of offer, acceptance, consideration and intention to create legal relations. Suffice it to say, that even where all the other essential ingredients necessary for the formation of a valid contract are present, an agreement may nonetheless be adjudged illegal, voidable or unenforceable where any of the parties belong in the category of persons that enjoy the special status. Having underscored that contractual capacity is sine qua non to any binding and enforceable undertaking, this work focuses on juxtaposing the contractual capacity of infants under the common law vis--vis sharia law, illuminating on the salient features and similarities of the concept inherent in both systems and clearing the attendant misconceptions which afortioribe clouded, especially, the contractual capacity of an infant under the Islamic jurisprudence, which very often, is misconceived as an intellectually sterile and archaic body of knowledge. It is important to note however, that there is a poverty of Nigerian judicial pronouncement on the subject matter under discourse, and to remedy this lacuna, recourse would be had to foreign decisions on the topic, hence the bulk of the principles of the Nigerian Law of Contract as we know are derived there from.