Case 3mosher v. benson

MG131 Canadian business law

Case Summary3.7Mosher v. Benson15

Car Is Not a Necessity, Contract Voidable

15 2008 NSSM 72 (CanLII).

Mosher (Plaintiff), Benson (Defendant) in a trial before the Small Claims Court of Nova Scotia.

Kyle Mosher was only 17 years old when he purchased a car from Peter Benson. The issue before the court was whether or not that contract could be set aside on the grounds that the plaintiff was a minor.

In this action, Mosher asked to have the transaction reversed on the basis that he was a minor at the time of the contract. He also claimed that the car was not roadworthy and that he had been charged an excessive price considering the condition. The judge found that there were no expressed or implied warranties with respect to the physical condition of the vehicle, given the fact that it was a private sale.

Since the age of majority in Nova Scotia is 19 years, the contract of sale was with an infant. It was therefore voidable unless it was for a necessity. The judge then considered whether the sale of a car qualified as a necessity.

The judge referred to theLaw of Contract in Canada,16which stated concerning necessities, "Curiously enough, a car has been held not a necessary, even in these days, even as inPysett v. Lampmanwhere the car was used by the minor in the business of selling fish by which he earned a living."

16 Gerald Fridman,The Law of Contract in Canada, 5th ed., (Toronto: Thompson Carswell, 2006).

In this case as there was no claim that the car was needed for any special use, there was no question that it could be considered a necessity. The contract was with an infant for a non-necessity and was therefore voidable. Therefore, the judge ordered that the parties be restored to their original positions. The seller was required to return the purchase price paid, as well as the filing fee for bringing this action, and Mr. Mosher was ordered to return the car.

This case illustrates the way contracts with infants are treated and indicates the appropriate remedy when a contract is determined to be voidable.

Read Case Summary 3.7 Mosher v. Benson on page 85. This case is about a 17 year old who purchased a car from an adult. The 17 year old (Mosher) asked to have the transaction reversed on the basis that he was a minor at the time of the contract.

Answer the following questions:

1.This case is from the province of Nova Scotia. How would this case likely be resolved in a British Columbia court? Answer this question by describing the relevant law in British Columbia.

2.Do you believe that a car should be considered a necessity? Why or why not? Consider what the definition of a necessity is in your answer.