the ends remain the same. The third category consists of those transactions for which there has been no equivalent in the physical world. Examples of this would be the creation of social media accounts such as Facebook , providing advertising services or putting up content on personal YouTube channels or podcasts , creating apps to be sold on the Google or Apple app stores , esports player contracts and the like. The subject matter of these contracts exists in the digital realm and they are meant to be performed exclusively in the digital sphere. While it is possible to enter into these contracts using the traditional route, it is more expedient to do so electronically, especially when it requires nothing more than a few clicks of the mouse. This paper argues that we need to think about how to deal with the second and third categories of contracts. Many of these contracts are novel by-products of the age of technology in the sense that they would not exist had it not been for the technological developments in the recent past. Moreover, it is an inescapable fact that it is the younger generations who are more adept at using technology, faster to adapt to new and emerging applications, and thus are the primary beneficiaries of the digital economy. Perhaps due to these reasons, the contracts in question concern subject matters that appeal more to the digital natives than they do to older generations. In a sense, digital contracts self-select minors as the intended contracting parties. This leads to increased participation by minors in the contractual sphere, and these new contracts are also executory in nature, though not for necessaries, and thus beyond the protection afforded by the existing exceptions to minors’ incapacity. Moreover, in the digital space, there is a methodological problem in ascertaining the age of the contracting parties. These contracts can be between two minors or between a minor and an adult. The digital age presents tremendous opportunities for both the consumer-minor and the entrepreneur-minor, whether contracting with each other or with major parties individually. For this analysis, let us consider two specific contracts—one where the minor has an Instagram account (the consumer-minor contract), and another where the minor is a professional e-sports player (the entrepreneur-minor contract). The English Common Law/ Indian Option the English and Indian courts would have to decide whether minors’ contracts falling in the aforementioned second and third categories could be regarded as contracts for necessaries or contracts for the benefit of the minor. Signing up for an account on Instagram involves entering into a contractual relationship with its parent company Meta (formerly known as Facebook). The minimum age to have an Instagram account is 13 years, although most social media companies do not have an age verification mechanism in place, potentially enabling under-13-year-olds to enter into these contracts with the company . Even if they did, their policies nevertheless allow minors between the ages of 13 and 18 to enter into contracts with them. The terms of use for these ‘Meta Products’ include collecting and storing the information and content provided by the user consciously, and the metadata provided unconsciously, and by third parties, among others. Essentially, the consideration provided by the user to partake in these ‘free services’ is the user’s data; minors give information about themselves in return for the opportunity to use the app and engage with the world. Nevertheless, despite both parties doing or abstaining from doing ‘something’ for the other, this is not a contractual relationship, merely because one of the parties is not of age. In the absence of a legally enforceable contractual relationship between the two parties, rights and obligations do not flow either way. How, then, can the consumer- minor’s interests be safeguarded in this scenario? Substantial research has been done on the effects of social media on children and young adults . Quite a lot is known about the deleterious consequences of the improper use and consumption of these services. In this light, how willing would a court be to hold that having an Instagram account is for the benefit of the minor, or a necessary suited to the consumer-minor’s condition in life One may flip the situation to consider the case of an Instagram influencer who promotes and advertises products or services, and gets paid in cash or kind. Unlike a consumer- minor who uses the services rendered by or on Instagram, this entrepreneur-minor provides services to or on Instagram. This is the case of a minor entering into business or commercial transactions with corporations for marketing purposes, making them the promisor rather than the promise. If they keep up their end of the bargain and put out a sponsored post on their Instagram feed, and the company refuses to pay up, what remedy is available to the minor in this case If she sues the company, will the courts be required to decide whether this employment contract was for the benefit of the entrepreneur-minor? In India, a contract of employment can be considered to be a contract for necessaries if the minor in question is indigent. It is unlikely, though, that an Indian court would accept .The policy term reads thus: “Instagram requires everyone to be at least 13 years old before they can create an account (in some jurisdictions, this age limit may be higher). Accounts that represent someone under the age of 13 must clearly state in the account’s bio that the account is managed by a parent or manager.” 87 Instagram’s data policy clearly states that the app ‘must process’ information about the user in order to provide the Meta Products. Section I provides details on the type of information collected: “We collect the content, communications and other information you provide when you use our Products, including when you sign up for an account, create or share content and message or communicate with others. This can include information in or about the content that you provide (e.g. metadata), such as the location of a photo or the date a flee was created. It can also include what you see through features that we provide, such as our camera, so we can do things such as suggest masks and filters that you might like, or give you tips on using camera formats. Our systems automatically process content and communications that you and others provide to analyze context and what’s in them for the purposes described below.” 88 Consideration is defend in § 2(d) of the ICA thus: “When at the desire of the promisor, promise or any other person has done or abstained from doing or does or abstains from doing or promises to do or to abstain from doing something, such act or abstinence, or promise is called a consideration for the promise.” 254 Minors’ Contracts in the Digital Age 13 that argument. Social media is generally viewed as a distraction and not as a serious money-making venture. Rags to riches stories are few and far between. It is not difficult to imagine a judge ruling that there are better ways to earn a living for an indigent minor. Moreover, an Instagram influencer’s work profile is not protected by the provisions of the Indian Apprentices Act, 1961 and thus that door is shut. When minors across the board are dissuaded by law from entering into contracts, how willing will a court be to rule in favour of this entrepreneur-minor? One can do deeper down the rabbit hole. Even if a court determines that a social media account is a contract for necessaries, or that it is a contract for the benefit of the minor, will the court go into questions of determining how many social media accounts a minor can contract for, or whether one social media account is more beneficial than another for a minor’s well- being? If a court does find that social media accounts are not necessaries for a consumer-minor, and not beneficial for an entrepreneur-minor, we are faced with a situation where thousands of minors will continue to enter into void contracts that will not confer any rights on them. Although the consumer-minor would have already provided valuable user data, they would not be able to sue the social media company for breach of their privacy obligations. Similarly, despite having worked hard to create a popular YouTube channel, the entrepreneur minor would not be able to sue YouTube for their proper share under the revenue sharing contract (YouTube 2021).89 The ICA will be more honored in the breach than in the observance. On the other hand, some of these questions shift the focus to judicial regulation of social media consumption rather than protection of minors’ contractual interests. Is it the role of contract law to regulate social media? Decidedly not. One may argue that regulation of social media is not the intention of this judicial inquiry but it is difficult to envision how the courts will rule on the enforceability of these kinds of digital minors’ contracts without considering normative questions surrounding the optimum level of social media consumption. This will open the Pandora’s Box by raising its own set of privacy and liberty issues. What started as an innocuous conversation on minors being protected as they engage with the world will devolve into a discussion of who they can interact with and how. Another example of a digital contract that is being entered into by entrepreneur minors is e-sport player contracts, which are on the rise with the increasing popularity of competitive gaming. E-sports involve multiplayer video games played online. By their very nature, they can be performed only in the digital realm. E-sport organizations contract with players and hold tournaments, just like regular basketball teams or football clubs (James 2020). The careers of most e-sport athletes (and also traditional athletes) usually take of before they come of age, thus making minority an issue in such contracts. For example, Anathan Pham, a professional Dota 2 player, dropped out of high school, and moved to China from Australia, to turn pro at the age of 16 years. Under English common law, these The YouTube Partner Program allows content creators a share in the ad revenue and YouTube Premium subscriber’s subscription fee, among other benefits. The creator needs to be “at least 18 years old, or have a legal guardian older than 18 years of age who can handle your payments via AdSense,” have a certain number of subscribers, and should “create content that meets our advertiser-friendly content guidelines.” contracts would be categorized as employment contracts and held enforceable as they are for the benefit of the minor. The validity of e-sports contracts in India turns on the question of whether these are contracts of service or apprenticeship. Following the ruling in Raj Rani, if these are contracts of service, they are void ab initio like most other minors’ contracts. One would then have to show that e-sports player contracts are contracts of apprenticeship to gain the protection of the law. This will be a futile endeavor since the list of trades designated under the Apprentices Act does not include sports players, even though it (ironically) does recognize sports good makers (Directorate General of Training 2021).90 The other issue to be considered is whether these e-sport contracts are for the benefit of the minor. Since the idea of teenage athletes making it big is relatively more plausible, the question here turns on the acceptability of e-sports as a lucrative career option. Hence, there is a possibility that courts may recognize e-sport player contracts as contracts for the benefit of the minor, but it’s difcult to gauge the strength or success of this approach in the absence of precedents. Once again, we face a situation where the current legal provisions are incapable of dealing with the changing nature of contracts. Both kinds of entrepreneur-minors, whether an Instagram influence or an e-sports player, are left to fend for themselves, without the protection of the law. We have seen earlier how judicial interpretation of these exceptions has been fluid and indeterminate, especially in the Indian context. The imprecise and ambiguous expositions do not bring clarity on how these emerging kinds of minor contracts can be assimilated within the existing rules. The South African Option the courts adopting this approach will consider two questions: what is the age of the minor and whether they had the consent or assistance of their legal guardian while entering into the contract under question? Minors over the age of seven years have limited contractual capacity under the South African regime. Since most social media companies want their users to be at least 13 years of age, the age requirement in the case of both the Instagram consumer-minor and the entrepreneur-minor contract is met. Then all that remains is to determine whether the consumer-minor had parental consent or the assent of their guardian to open an Instagram account. The same is the case with the e-sport entrepreneur-minor contract. Any child above the age of seven can enter into these e-sport gaming contracts as long as they have the assistance of their guardian. In both these situations, the court will not undertake a normative determination of the nature of the minor’s contract to rule upon its validity. Compared with the English/Indian approach, the South African approach, by focusing on procedural requirements, considerably eases the implementation of rules relating to contractual capacity. 90 Details about the trades covered under the Apprentices Act is available online. 91 For a rich, detailed discussion on the status of minors’ contracts in the entertainment and sports industries. Major differences in minors’ contracts: a comparative analysis into the validity of contracts with minors in the sport and entertainment industry. Minors’ Contracts in the Digital Age 13 the problem with the South African system lies in determining that the minor had parental assent. It is easier to prove parental supervision in the traditional contracts regime rather than in the digital one. When a minor goes to buy a house or books, the other party can communicate directly with the parents/guardians to check if they have assented, be it face-to-face or through a signed undertaking which they can hold in their hands and verify. This might not be the case given the anonymity provided by the digital space. How does one ensure that the parents/guardians have assented when all communication happens through the impersonal, online medium? How can anyone know who exactly is sending the email or clicking the ‘I Agree’ button? There is also the issue of perverse incentives. Most social media companies are lax about enforcing their age requirements, thus enabling underage children to use their products, and gaining users they might not have had otherwise. They are similarly lax about ensuring that their minor consumers do actually have the permission of their parents. YouTube’s terms of service assume that the minor user has their parent or guardian’s consent to use their services (YouTube 2021).92 It also assumes that a parent or guardian whose ward uses YouTube does so with their permission and thus they are bound by the terms of the agreement, even if they themselves might not be YouTube users (YouTube 2021).93 This is unexplored territory, and policy and technological solutions to the issue of age verifcation should be further investigated. One hopes that the adult contracting parties will be more particular in dealing with minor parties, and create more robust frameworks for determining the presence of parental or guardian assent. Otherwise, lack of care on their part might lead to a caveat adults situation, which, in the long run, will be to the detriment of both parties. The other option is that as more cases of digital contracts come up for adjudication, the judiciary and the legislature are able to formulate guidelines for the same.

Anson famously determined contract law to be the child of commerce. Minors today are increasingly entering into contracts, whether as consumers or creators and thus it is imperative that “law strike an appropriate balance between the empowerment and protection” of this class of contracting parties. It is this author’s opinion that the present understanding of capacity under Indian law is incapable of effectively dealing with the contracts that are the product of the digital age. One way forward is to follow the South African system and introduce a limited contractual capacity regime in India. Instead of determining whether the minor’s contract is for their benefit, or is a quasi-contract and thus a transaction for necessaries, in a bid to get around the statutory prohibition against minors contracting, the 92 The term reads thus: “If you are considered a minor in your country, you represent that you have your parent or guardian’s permission to use the Service. Please have them read this Agreement with you.” The term reads thus: “If you are a parent or legal guardian of a minor in your country, by allowing your child to use the Service, you are subject to the terms of this Agreement and responsible for your child’s activity on the Service.” courts will merely have to determine a question of fact, to wit whether the parent or guardian assisted the minor when forming the contract. Not only will this approach give legitimacy to the many minors’ contracts already in existence, but also it will continue to protect minors from exploitation if their parents or guardians actually do oversee their contractual activities. A variant of the parental or guardian consent system does exist informally in several commercial relationships. Parents are often asked by educational institutions to undertake good behavior on the part of their wards. A few schools in Bangalore, in a bid to curb cyberbullying, have also asked parents to ensure that their children do not have social media accounts, specifically targeting Facebook. Following the South African model will result in formalizing existing tried-and-tested systems. Another way forward would be the partial implementation of the South African system. The ICA can experiment with graded capacity, fixing the age at 7, 12 or 14 years, and hold these minors’ contracts as voidable at the instance of the minor, instead of full-fledged valid contracts. This system takes the age requirement from the South African regime but does away with the parental consent or assistant of the guardian element. Since lack of free consent also results in voidable contracts, this approach utilizes a framework that already exists in the Indian contractual regime, instead of adding a new variable as the previous suggestion does. It should be noted that minority does not manifest as incapability across the legal spectrum. Actions can be brought against minors under tort law and criminal law. The Indian Penal Code, 1860 uses a system of graded capacity. Children below the age of 7 years enjoy absolute immunity from prosecution and punishment, while those between the age of 7 and 12 enjoy qualified immunity. A child above the age of 7 years will be held as liable as an adult if the prosecution can prove that such child had “attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion”. It is preferable that a graded contractual capacity regime fixes a specific age and use only that as the criteria, because it is much easier to determine the age of a person than it is to determine their state of mind, several years after the fact. The other form of incapacity recognized by the ICA is insanity, though the lawmakers used a less paternalistic approach when dealing with persons of unsound mind than with children. Section 12 of the ICA does not prescribe a complete bar, drawing upon the disparate approaches taken by medicine and law in defining insanity. The section lays a twin test: at the time of entering into the contract, was the party was capable of understanding the contract; and was the party capable of forming a rational judgment as to the effects of the contract on their interests? This enables a person of unsound mind to enter into contracts during their lucid phases. Why not apply the twin tests to minority too? As long as a child above a certain age is capable For example, Ram Ratna Vidya Mender, a residential high school in Thane, Maharashtra, requires that parents/guardians sign an undertaking ensuring that their ward “report punctually to the school” and “does not carry any eatables, cash, electrical gadgets or any other costly items to the hostel & school”, among others. Indian Penal Code, Minors’ Contracts in the Digital Age 13 of understanding the terms of the contract and the effect it will have on his or her life, such a child should be allowed to enter into such contracts and have the law recognize the same. The ICA is using traditional methods to address a modern problem. It needs to evolve if it wants to keep up with the rapidly changing times. Whichever way the Indian legislators choose, a change is inevitable. Sir Henry Maine remarked on the movement of progressive societies from ‘status’ to ‘contract’ (Maine 1963). It is time that the ICA also moved beyond a minor’s position and take into account their will and intention.

The present laws concerning the minors’ contract is in a number of respects confused and contradictory. Much of the difficulty of the traditional laws has arisen from the reluctant of adults to deal with minors because of the fear of financial loss. The greater role played by minors in today’s times and hardships has forced the law to be reformed. The law must be flexible enough to bind the minor to his contractual promises. A minor who is desirous and wants to engage in any business, the courts must enquire and empower for removal of all the disabilities. Courts should be empowered, on petition of either party, to approve single. Such a provision would enable an adult to protect himself so long as he has not overreached. Age of majority should be uniform in India as different legislations explains different age of minor and different age limits. The age of majority should not be strictly based on age instead it must be based on capability of minor who could know what he or she is doing at the time of making an agreement. Amendments or new provisions should be incorporated to the existing laws so that minor could not use minority as sword but he or she could use it as a shield only.