Legal transplantation of minors’ contracts in India and Malaysia: ‘Weak’ Watson and a ‘misfitted’ transplant

Abstract

ABSTRACT While contracts by minors are generally voidable in most common law jurisdictions, the apex court in India and in Malaysia has each held that such contracts are void ab initio, following a century-old Privy Council decision in Mohori Bibee (1903) 30 ILR Cal 539. This article explores minors’ contracts through the lens of legal transplant—viewing transplanted laws on a continuum, from a ‘Strong Watson’ perspective where English common law was adopted by the Indian courts, to a ‘Weak Watson’ position following the Privy Council’s interpretation of the law in the Indian Contract Act 1872. The authors conclude that the current Weak Watson transplant of laws on minors’ contracts is a ‘misfitted’ transplant which is neither consistent with the original intent of the transplanted law nor fit for purpose in a modern context. Given minors’ inability to enter into contracts or seek remedies, urgent legislative reform or judicial reinterpretation is required in India and Malaysia.