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Pleading, The old system of

Non Est Factum, Plea
Last updated: 06-Oct-2014

Lord Wilberforce in Saunders v Anglia Building Society [1971] AC 1004 analysed historical background and stated a test of admissibility of non est factum plea:

The plea of non est factum has a long history. In medieval times, when contracts were made by deeds, and the deed had a kind of life in the law of its own, illiterate people who either could not read, or could not understand, the language in which the deed was written, were allowed this plea (that is what 'non est factum' is—a plea): the result of it, if successful, was that the deed was not their deed. I think that three things can be said about the early law. First, that no definition was given of the nature or extent of the difference which must exist between what was intended and what was done—whether such as later appeared as the distinction between 'character' and 'contents' or otherwise. Secondly, the … cases are for the most part as between the original parties to the deed, or if a third party is concerned … he is a successor to the estate granted. Thirdly, there is some indication that the plea was not available where the signer had been guilty of a lack of care in signing what he did: there is no great precision in the definitions of the disabling conduct…

How, then, ought the principle, on which a plea of non est factum is admissible, to be stated? In my opinion, a document should be held to be void (as opposed to voidable) only when the element of consent to it is totally lacking, that is, more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended. Many other expressions, or adjectives, could be used—'basically' or 'radically' or 'fundamentally'… In other words, it is the lack of consent that matters, not the means by which this result was brought about. Fraud by itself may do no more than make the contract voidable.

Secondly, a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect…

Thirdly, there is the case where the signer has been careless in not taking ordinary precautions against being deceived…. In my opinion, the correct rule, …, is that, 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.

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