The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The common law doctrine of non est factum has a very narrow and limited application. The transaction must be essentially different in substance or in kind from the transaction intended. The plea is available to a narrow class of persons, namely, those who are: unable to read owing to blindness or illiteracy; or permanently or temporarily unable, through no fault of their own, to have without explanation any real understanding of the purport of a particular document, whether that lack of understanding be from defective education, illness or innate incapacity.
Lord Wilberforce said: ‘leaving aside negotiable instruments to which special rules may apply, a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which, if neglected, prevents him from denying his liability under the document according to its tenor. I would add that the onus of proof in this matter rests upon him.’
Lord Reid said: ”the matter generally arises when an innocent third party has relied on a signed document in ignorance of the circumstances in which it was signed, and where he will suffer loss if the maker of the document is allowed to have it declared a nullity.’
. . And ‘The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisors without making any inquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have had such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.’
Judges:
Lord Wilberforce, Lord Reid
Citations:
[1971] AC 1004, [1970] UKHL 5, [1970] 3 All ER 961, [1970] 2 WLR 1078
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Howatson v Webb ChD 1907
The defendant, a solicitor’s clerk, pleaded non est factum to an action on a mortgage deed he had signed. He said that he had thought it to be a deed transferring property held as nominee for the solicitor.
Held: The court should make . .
Cited – Howatson v Webb CA 1908
The court accepted a plea of non est factum, approving the distinction made by the trial judge between the approval of the contents and the character of the deed executed. Cozens-Hardy MR said that he approved every word of Warrington J’s judgment. . .
Cited – Carlisle and Cumberland Banking Company v Bragg 1911
A party wishing to establish a plea of non est factum in order to avoid liability under a deed, must show that he had taken care in signing the document.
Held: There could not be negligence in the execution of a document unless a duty was owed . .
Cited – Thoroughgood’s case; Thoroughgood v Cole; Throwgood v Turnor, Moore 1584
Where a signatory is blind, and the document is read to him falsely either by the grantee or by a stranger, then the deed is not binding on him. An illiterate signatory need not execute the deed without it being read over to him, but where he . .
Cited – Muskham Finance Ltd v Howard CA 1963
Non est factum limited but effective
K instructed a dealer to sell a car which K held under an hire purchase agreement. The dealer found a who wanted hire purchase terms. K signed, at the dealer’s request, a document for the purposes of the transaction. Later, the dealer told K he had . .
Cited – Whelpdale’s Case 1604
Where a bond is delivered to somebody else to the use of the obligee, on being tendered is refused, the delivery of the deed was no longer effective, the obligee could not later agree to it, and the obligor could plead non est factum. . .
Cited – National Provincial Bank v Jackson CA 1886
Two sisters executed deeds relating to their property, but did not read them first or having them read out to them or explained. They said that they had relied on their brother, a solicitor.
Held: Cotton LJ said that they could not have been . .
Cited – Foster v MacKinnon 1869
The court considered a plea of non est factum.
Held: Byles J set out situations where the plea was available: ‘It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying . .
Cited – Whelpdale’s Case 1604
Where a bond is delivered to somebody else to the use of the obligee, on being tendered is refused, the delivery of the deed was no longer effective, the obligee could not later agree to it, and the obligor could plead non est factum. . .
Cited – Shulter’s Case 1611
Where a blind or illiterate person (here 115 years old) had a deed read over to him before it was signed, but he was mislead, he could plead non est factum. . .
Cited – In re Leighton’s Conveyance CA 1937
Rules of court provided that a person suing as a poor person should not be ordered to pay costs.
Held: The Order did not prevent the mortgagee adding to her security her costs in an action brought by the mortgagor suing as a poor person. Lord . .
Cited by:
Cited – Abacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
Cited – Avon Finance Co Ltd v Bridger CA 1985
The son arranged finance for his parents to move near to him. He borrowed money to help finance it, secured by an expensive second loan. He deceived his parents into executing the loan. After the son defaulted, the plaintiff sought possession.
Cited – Peekay Intermark Ltd and Another v Australia and New Zealand Banking Group Ltd ComC 25-May-2005
The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in . .
Lists of cited by and citing cases may be incomplete.
Contract, Land, Undue Influence
Updated: 07 June 2022; Ref: scu.181653