ABSTRACT

Incapacity in the common law of contract differs from problems of capacity in continental law in two main ways. First, it is not really part of any general theory of the law of persons primarily because the common law has not worked out any such theory (cf Chapter 2 §§ 7-8).117 Legal personality, for example, is a somewhat restricted concept applied mainly to public or commercial organisations and, as such, the associated problems of contractual capacity belong more to public or to company law.118 Secondly, capacity is not generally an essential requirement for the validity of a contract and this means that a contract with a person of unsound mind will prima facie be valid and only voidable in equity if equitable fraud can be shown.119