Non est
factum literally translates to “it is not my deed. This principle developed to
mitigate the harshness of the common law principle that a party is bound
by his signature to the content of a document, whether he understood it or not.
This was
exemplified in the case of L’estrange vs. Graucobs. In this
case, defendants sold a slot machine to the plaintiff. In order to make the
sale effective, the plaintiff has to sign a document which excused the
defendants from liability in case of default. The plaintiff was unaware of this
and when he purchased the machine, it was discovered to be defective. The court
held that the plaintiff could not have the contract canceled since he had
already appended his signature to the document.
The
principle of non est factum was exemplified in Thoroughood’s case. In
this case, Mr. Thouroughoood’s tenant, Mr. William Chicken, owed arrears of
rent. Mr. Thoroughood intended to free him from liability and a document was
created to that effect. The document that was created however was one that
transferred the property to Mr. William Chicken. Mr. Thoroughood was an
illiterate and he thus asked Mr. Chicken what the document entailed. Mr.
Chicken misrepresented to him that the document was a document to cancel
arrears of rent. Thus, Mr. Thoroughood signed it.
Subsequently,
Mr. Chicken sold the property to an innocent third party. The court held that
the principle of non est factum would apply here since considering the fact
that Mr. Thoroughood was an illiterate and he made enquiries as to what purpose
the document was for. Thus, the deed of transfer to Mr. Chicken was void.
Requirements
for the Application Of The Plea Of Non Est Factum
Before a
plea of non est factum can be entertained, two requirements have to be
fulfilled. They are:
1. A
fundamental difference: What this
means is that there must be a fundamental difference between what was intended
and what was accomplished by the document.
In the case
of case of Bagot vs. Chapman, the object intended was a power
of attorney, what was accomplished by the document was a mortgage of property.
If the
difference between what was intended and what was accomplished by the document
is similar, the plea of non est factum would not be applied. In the case
of Gallie vs. Lee the object intended was disposition of
property by way gift but the object accomplished was a disposition by way of
sale. It was held that the rule would not apply since both end results were
similar.
2. There
shouldn’t be Laziness on the part of the affected party: This principle would not apply where the
affected party was lazy and indolent regarding the reading of the document. If
a document is given to someone who signs it without reading or trying to read
it, non est factum would not be applicable.
In the case
of Play vs. Poland & Morris, the defendant signed a
document believing it to be in respect to a dissolution of partnership. In
effect, the document was one which placed liability on him to indemnify other
partners in case of loss. The court held that since he didn’t make attempt to
read the document or know its content, the plea of non est factum would not be
applicable.
The reason
for this position is due to the fact that if the plea is not limited, people
would take advantage of it in order to unnecessarily escape liability. In the
case of illiterates who make enquiries concerning the content of the document,
the plea would be applicable.
In the case
of Lewis vs. Clay, the defendants signed as witness in a
particular deed by a third party. They couldn’t see the full documents and when
they asked to see, they were told that they didn’t need to see the full
documents, only their signature was needed. What they were actually signing was
a promissory note to pay Lewis as sum of 11000 pounds. Their plea of non
est factum was successful because they were not negligent in the sense
that they made steps to be sure of what they signed although they were misled.
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