Non Est Factum

Question 1

Define non est factum?

Answer 1

• Was generally applied on the fact that many people used to be illiterate. Still exists today but is very narrow since you essentially have to be illiterate.
• CL defence, where the plea of non est factum rendered the deed void ab initio, thus preventing even an innocent third party from acquiring rights under it.
• Happens when a party signs a particular document with a signature on it, and it turns out that they did not know what they were signing. It was not the will of the person to sign it though.

Question 2

Saunders v Anglia Building Society, 1971

Answer 2

• Creates a two-step test to establish the mistake of non est factum
  o (1) the claimant must show how the document that is signed must be totally different, radically different, or fundamentally different from what the person thought they were signing. AKA - different in character.
  - It’s not enough to sign something and not know what it says, you have to show that the effect of the contract is radically different.
  - Often is seen as a difference in character or class, not a difference only in contents.
  § i.e. transferring title to the wrong person is not radically different from what you thought you were signing, as you were still signing to transfer title in general.
  - This is a very high standard.
  o (2) the mistaken party was not careless in signing the document
  They were not careless in failing to read it

Question 3

Marvco Color Research Ltd. v. Harris (1982, SCC) | carelessness

Answer 3

• The SCC endorses the two step test from Saunders and elaborates on Q2
• If you are literate and had an opportunity to read and simply chose not to because of laziness or inattention, that will be sufficient carelessness to disentitle you from satisfying the second step of the Saunders non est factum test
• Signatures matter, if you sign something it denotes a seriousness and it binds people. It puts an onus on the signer to think carefully and satisfy yourself with the contents before signing as a matter of legal policy. Thus, you shouldn’t be lazy not to read it.