"Non est factum"

"Non est factum" is a Latin phrase used as a defense in contract law. It allows a party to claim that a contract they have signed should be considered void because they were mistaken about the nature or terms of the contract. The mistaken party argues that the contract is not their deed because they were misled, deceived, or coerced into signing it. This defense is typically raised when there is a significant disparity in bargaining power between the parties, and one party takes advantage of the other's vulnerability.

The principle of "non est factum" is based on the idea that a contract is only valid if the parties have genuinely consented to its terms. If a person is induced to sign a contract under circumstances that make it unreasonable for them to understand the nature of the contract, they can assert the defense of "non est factum."

An important case that illustrates the application of "non est factum" is Foster v. Mackinnon (1869) LR 4 CP 704. In this case, the plaintiff, Foster, was a poor and illiterate woman who was asked to sign a document by the defendant, Mackinnon. She was told that the document was a guarantee for a loan, but in fact, it was a deed of assignment that transferred her property to Mackinnon. Foster later sought to have the deed set aside on the grounds of "non est factum," claiming that she did not fully understand the nature of the document she signed.

The court in Foster v. Mackinnon held that the defense of "non est factum" could be successful if three conditions were met:

1. The signer was mistaken about the nature of the document they were signing.

2. The mistake was reasonable in the circumstances.

3. The signer was not negligent in failing to ascertain the document's nature.

The court found in favor of Foster, setting aside the deed of assignment. This case established that the defense of "non est factum" could be used to protect individuals who were vulnerable or unable to fully comprehend the contracts they were signing.

It's important to note that the defense of "non est factum" is not easy to establish and requires substantial evidence to prove that the signer was genuinely mistaken about the contract's nature. Each case is unique, and the outcome depends on the specific circumstances and the court's interpretation of the evidence presented.

References:

1. Foster v. Mackinnon (1869) LR 4 CP 704

2. Treitel, G. H. (2007). The Law of Contract (12th ed.). Sweet & Maxwell.