Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent Deeds by Minors
Date: 13 February 1672
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There is a great difference between deeds done by a minor having curators, without their consent, and deeds done by a minor wanting curators:* for deeds of the last kind must be revoked, and reduction thereof raised within the profitable years, else they stand unquarrellable: they cannot be annulled unless lesion be likewise conjoined and proven: the exception of minority against such deeds is not receivable by way of reply or exception, but only in an action; such deeds are not ipso jure pure null, but valid ay and while they be lawfully taken away: an oath given by such a minor, swearing that he shall never come in the contrary thereof, (and a wife granting bond without her husband, and swearing the same, will be in the very same condition,) will so corroborate the deed that he will never be permitted to impugn the same: and finally of this case the authentic Sacramenta puberum in Tit. C. Si adversus venditionem must be understood; whereon the D D. and commentators teach that contractus in se validi tantum confirmantur juramento apposito, non vero contractus de jure invalidi. Whereas a deed done by a minor having curators, without their consent, is an act absolutely null of the law, needs no revocation, no reduction, may be quarrelled at any time thereafter etiam quadriennio elapso, imports lesion without any other probation, may be objected at any part of the process via exceptionis vel replicæ, the party only proving that they had curators the time of the said deed; yea, to sum up all, it is so far null that an oath (quoad semper est servandum nisi vergat in æternæ salutis dispendium vel in alterius prejudicium redundet,) ties him not to the observance of any contract made by him without consent of his said curators, but restores him against the same; because the said deeds being ipso jure null, there is no act whereto the oath can be accessory; quod non est nequit confirmari; non entis nulla dantur accidentia, nullæ qualitates. Sic Hadington, 15th December 1609, Constable of Dundy. Sic Perezius, in Paratitlis ad supra-d. Tit. C. Si adversus venditionem, who shows that the canons order all oaths given by minors, without distinction, to be sacred and inviolable, cap. 28 ext. de jure jurando, but that the French law rejects all such oaths ob lubricitatem ætatis, in qua æque facile est iis jurare ac contrahere, and restores minors against them whether they be adjected contractui valido vel invalido; nam quæ contra legem fiunt, nulla stipulatione, nullo mandato, imo nullo sacramento firmitatem capere debent; L. 5.in fine C. de legibus. Vide L. septimam, p. 16. D. de Pactis, ibique Gothofredum. Gudelinus, De jure novissimo, libro3tio, cap. 14, shows this also to be the law of both Gallia Celtica et Belgica. Vide infra, Provost Currie's case, 10th January 1680.
Advocates' MS. No. 328, folio 131.
* All thir differences result from the common law. Vide L. 3 C. de in integrum restitutione Minorum; it is a constitution of Maximinian and Diocletian. Vide Craig, pag. 83. Vide supra, No. 302. January, 1672.] See Vinnius lib. 1 Qitæsiio. cap. 15. Vide the Books of Sederunt and the compend thereof, at the 20th of December 1599, act anent the Laird of Bathayok.
