Non Est Factum in English Law2

3
Non est factum in English law
3.1 Introduction
Non est factum is a plea applicable only to documents. If successfully
established, it renders the impugned document, thus the putative con-
tract allegedly effected by it, void.1
The main points of this discussion will be, first, that the plea is based
upon proof of the complainant’s absence of consent to the putative
contract. The essence of the plea is that the impugned document is
not the complainant’s document, because he did not intend to execute
it. If the complainant did not intend to execute the impugned doc-
ument, he did not intend to make, or consent to, the putative contract
allegedly effected by it. This might be because he did not actually sign the
document or because he signed it believing its effect was fundamentally
different from its actual effect.2 The actual effect of the document, if
upheld, is to conclude the putative contract, and in proving that he
intended an act fundamentally different from this, the complainant
proves either that he did not intend to execute a document of any
contractual effect, or that he intended to execute a document of a
different contractual effect. If he did not intend a document of any
contractual effect, he did not intend to make, or consent to, any contract;
if he intended to execute a document of a different contractual effect, he
intended to make, and consented to, a contract different from the
putative contract. Either way, he did not consent to the putative
contract.
Second, non est factum does not actually recognise the need for an
additional factor to render the proven absence of consent operative. The
complainant must prove that he was not careless in executing the
impugned document under a mistake,3 but this is insufficient to render
the absence of consent operative; it is merely a policy limitation of the
1 2 3
Saunders v. Anglia BS [1971] AC 1004, HL. Ibid. Ibid.
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76 non est factum in english law
plea. It will be shown that a complainant cannot normally prove an

absence of carelessness unless he proves either that he suffered from a
weakness impairing his ability to understand the impugned document
or that he was misled as to the purport of the document. However: (1) it
remains theoretically possible, if extremely unlikely, that the complain-
ant can prove an absence of carelessness even without proving either of
these facts; and (2) weakness in the complainant is not a sufficient
reason to render an absence of consent operative, anyway.
Third, there is debate as to whether the requirement of proof of an
absence of carelessness applies only when the complainant raises the plea
against an innocent third party. It will be argued that the requirement
should apply in all cases, as a policy decision to prevent the complainant
from relying on his own carelessness, but should be negated if the
complainant proves that the person against whom he raised the plea
knew of his absence of consent or fraudulently or negligently induced it.
Fourth, it is clear that, if the complainant suffers from a weakness
impairing his ability to understand the impugned document, this is
relevant to the plea.4 There is some suggestion that it is actually a
prerequisite of the plea, but it will be shown that this is not correct.
Finally, some judicial statements suggest that the complainant must
prove that his mistake was unacceptably induced by the defendant,5 but
it will be shown that this is not required.
3.2 The underlying rationale of vitiation

It is submitted that non est factum is the doctrine in relation to which it
has been most clearly accepted that the rationale of vitiation is the
complainant’s absence of consent.6 For example, in Foster v. Mackinnon,
in a passage cited with approval in Saunders v. Anglia BS,7 Byles J. said
that, when non est factum is established, the putative contract ‘is
invalid . . . on the ground that the mind of the signer did not accompany
the signature’.8 Further, Lord Wilberforce, in the Saunders case, said that
‘it is the lack of consent that matters, not the means by which this result
4
Ibid.
5
E.g., Hasham v. Zenab [1960] AC 316, 335, PC; Mercantile Credit v. Hamblin [1965] 2 QB
242, 268, 280, per Pearson and Salmon LJJ.
6
Cartwright (2007), 454; Furmston (2006), 322–3; Treitel (2007), 357.
7
[1971] AC 1004, 1020, 1026, HL, per Lords Hodson and Wilberforce.
8
(1869) 4 CP 704, 711.
underlying rationale of vitiation 77
was brought about’,9 and that, in struggling to set the appropriate

requirements of the plea, ‘the courts were groping for the test of what
should enable a man to say that the document was not his document, his
consent no consent, the contract no contract’.10 His Lordship then said:
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.11
Viscount Dilhorne, again in the Saunders case, said that the difference
between the putative contract and the intended act of the complainant
must be such ‘that it was never the [complainant’s] intention to execute
the document’.12 Indeed, there are many judicial statements asserting
that non est factum requires proof that the complainant did not intend
to execute the impugned document.13 If the complainant did not
intend to execute the impugned document, he did not intend to make
the putative contract allegedly effected by it. It does not matter whether
this is because he did not intend to execute a document of any contract-
ual effect or because he intended to execute a document having a
different contractual effect. There are other judicial statements referring
not merely to the absence of an intention to execute the impugned
document, but to the absence of an intention to make, and an absence
of consent to, the putative contract.14 However, an absence of consent to
the impugned document is necessarily an absence of consent to the
putative contract allegedly effected by it. Those statements referring to
an absence of consent to the putative contract merely express the con-
clusion to be drawn from proof of an absence of an intention to execute
the impugned document.
Therefore, it can be clearly seen that case law accepts that the basis of
non est factum is the complainant’s absence of consent to the putative
contract. Furthermore, the plea renders the putative contract void.15
9 10 11 12
[1971] AC 1004, 1026, HL. Ibid., 1025. Ibid., 1026. Ibid., 1022.
13
Vorley v. Cooke (1857) 1 Giff 230, 236, per Stuart VC; Foster v. Mackinnon (1869) 4 CP
704, 713; National Provincial Bank of England v. Jackson (1886) 33 ChD 1, 10, per Cotton
LJ; Carlisle and Cumberland Banking Co. v. Bragg [1911] 1 KB 489, 495, per Buckley LJ;
Lloyds Bank v. Waterhouse [1993] 2 FLR 97, 114, per Purchas LJ.
14
Lewis v. Clay (1897) 67 LJQB 224; [1897] All ER Rep. Ext 1738, 1741, 1742; Carlisle and
Cumberland Banking Co. v. Bragg [1911] 1 KB 489, 497, Kennedy LJ; DPP for Northern
Ireland v. Lynch [1975] AC 653, 695, HL, per Lord Simon. See also Petelin v. Cullen
(1975) 132 CLR 355, 359, HCA.
15
Saunders v. Anglia BS [1971] AC 1004, HL.
Additionally, in the classic case, the defendant fraudulently induced the

complainant’s mistake, or at least had knowledge of the fact that the
complainant believed he was performing an act the effect of which was
fundamentally different from the act of making the putative contract
(which amounts to knowledge of the absence of consent). It has been
explained that both the defendant’s (1) unacceptable inducement and
(2) knowledge, of the complainant’s absence of consent are sufficient
additional factors to render this operative.16 As such, non est factum
seems to fit my first category of vitiating factor perfectly.
However, it will be shown that neither unacceptable inducement, nor
knowledge, of the absence of consent is a prerequisite of the plea.
Weakness in the complainant or unacceptable inducement of the mis-
take, and thus of the absence of consent, by the defendant might be de
facto alternative requirements. For, the House of Lords in the Saunders
case noted that a complainant will not normally be able to prove that he
was not careless unless he proves either that he suffered from a relevant
weakness or that he was tricked into believing his act would be of
fundamentally different effect from making the putative contract. How-
ever, their Lordships expressly left this possibility open.17 Further, the
unacceptable inducement of the absence of consent could be by a third
party, without the defendant having any knowledge of, or responsibility
for, it, and this would not be a sufficient additional factor to render the
absence of consent operative as against the defendant. Similarly, it is
submitted that the complainant’s weakness is not sufficient to render an
absence of consent operative. The weak must be protected from exploit-
ation, but protection of the weak per se, without the defendant possess-
ing any knowledge of the weakness, goes too far.
The fact that is has not be recognised that non est factum should
require an additional factor to render the absence of consent operative
casts no doubt on the fact that the underlying rationale of vitiation is the
complainant’s absence of consent, but it does represent a significant
problem with the plea. For, effectively, it means that the plea can simply
override the objective principle. It is submitted that this is why non est
factum can be criticised as too wide. As a matter of fact, this might not
cause many problems, because the plea normally arises in cases where
the defendant’s conduct or state of knowledge provides a sufficient
16
See pp. 21–3 (generally), 29–30 (knowledge), 35 (unacceptable inducement), above.
17
[1971] AC 1004, 1016, 1021, HL, per Lord Reid and Viscount Dilhorne. See also p. 87,
below.
elements of non est factum 79
reason to render the absence of consent operative. Nonetheless, it is a

theoretical problem with the plea, which my theory highlights. Further,
my theory provides the solution to the problem, by showing why proof
of an additional factor to render the absence of consent operative is
required, and by highlighting what are the relevant additional factors.
3.3 The elements of non est factum

3.3.1 Introduction
Non est factum has two prerequisites, which were firmly established by
the House of Lords in the Saunders case.18 First, the complainant must
prove that he did not intend to execute the impugned document. He can
do this by proving either that he actually did not execute it, or that he
executed it believing its effect was sufficiently different from its actual
effect that his intended act was contractually different from the act of
executing the impugned document. This establishes that he did not
consent to the putative contract. Second, he must, at least against
innocent third parties, establish that he was not careless.
It is also clear that a weakness in the complainant affecting his ability
to understand the impugned document, and trickery of the complainant
inducing his mistaken belief, are relevant. It is contended that neither is a
prerequisite per se, but that, as a matter of fact, the complainant will
rarely be able to prove an absence of carelessness unless one or both of
these elements is present.
Therefore, the main contentious issues concerning the elements of the
plea are: (1) the degree of difference between the complainant’s intended
and actual acts necessary to establish an absence of consent; (2) whether
the complainant must in all cases prove an absence of carelessness; (3)
the role of a relevant weakness; and (4) whether unacceptable conduct
inducing the mistaken belief is a prerequisite.
3.3.2 Absence of consent: the requisite degree of difference

It has already been shown that the basis of relief for a successful plea of
non est factum is the complainant’s absence of consent.19 It will also be
shown that the test for a relevant weakness laid down in the Saunders
case requires an inability to understand, without explanation, the
18 19
[1971] AC 1004, HL. See pp. 76–9, above.
purport (nature and effect) of the impugned document.20 Therefore,

unless an accurate explanation is given, a complainant suffering from a
relevant weakness cannot have consented to the putative contract sup-
posedly created by execution of the impugned document: one cannot
consent to that which one cannot understand. Yet the test for the
requisite degree of difference between what the complainant thought
he was doing and what he was actually doing by executing the impugned
document also establishes an absence of consent. For, it requires that the
difference is so great that an intention to do the one act cannot properly
be equated with an intention to do the other: that is, consent to the
intended contract (or non-contractual act) cannot be properly equated
with consent to the putative contract. For example, an intention to
witness a signature as opposed to an intention to sign a promissory
note;21 or an intention to sign insurance documents as opposed to an
intention to execute a guarantee.22
As such, it might seem that there is doubt as to exactly which element
establishes the absence of consent. However, it will be shown that a
relevant weakness is not a prerequisite, so this cannot be the element
establishing the necessary absence of consent.23 A sufficient degree of
difference between the nature and effect of the intended act and the
nature and effect of executing the impugned document is, however, a
prerequisite. Therefore, this element is the one which establishes the
absence of consent that is the basis of vitiation.
The House of Lords in the Saunders case used various expressions to
describe the requisite degree of difference. For example, ‘“fundamental”
or “serious” or “very substantial”’;24 ‘entirely . . . or fundamentally’
different;25 ‘essentially different in substance or in kind’; ‘basically or
radically or fundamentally’ different;26 ‘fundamentally . . . or radically . . .
or totally’ different.27 However, whatever phrase is used, the essence is that
the difference is so serious that the nature and effect of what the com-
plainant intended to do is different from the nature and effect of
execution of the impugned document (i.e., from making the putative
contract). Therefore, an intention to do the former necessarily precludes
an intention to do the latter.
20
[1971] AC 1004, 1016, 1034, HL, per Lords Reid and Pearson. See also pp. 85–8, below.
21
Lewis v. Clay (1897) 67 LJQB 224; [1897] All ER Rep. Ext 1738.
22
Carlisle and Cumberland Banking Co. v. Bragg [1911] 1 KB 489, CA.
23 24
See pp. 85–8, below. [1971] AC 1004, 1017, per Lord Reid.
25 26
Ibid., 1022, per Viscount Dilhorne. Ibid., 1026, per Lord Wilberforce.
27
Ibid., 1039, per Lord Pearson.
Case law establishes that this element is the basis of the requisite
absence of consent. For example, Lord Wilberforce said that, in seeking
to define the appropriate test for the requisite degree of difference, ‘the
courts were groping for the test of what should enable a man to say that
the document was not his document, his consent no consent, the
contract no contract’.28 Further, his Lordship said:
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.29
Before the Saunders case, the test for the requisite degree of difference
was too formalistic to necessitate an absence of consent. In Howatson
v. Webb, Warrington J., in a judgment unanimously confirmed on appeal,30
held that the plea did not succeed.31 In this case, the complainant
executed mortgage deeds in relation to certain property held by him
as nominee for the defendant, in the belief that they were mere transfers
of the property. The ratio of the decision was taken to be that a mistaken
belief regarding the contents of the impugned document would not
suffice, but a mistake as to its character and class would.32 Lord Denning
MR in Gallie v. Lee (sub nom Saunders v. Anglia BS) correctly noted that
this was an artificial distinction.33 His Lordship gave the example of the
difference between a guarantee and a bill of exchange for £1,000 (char-
acter and class) and the difference between a bill of exchange for £100
and a bill of exchange for £10,000 (contents).34 By any sensible test, the
latter mistake is more serious.
Therefore, the House of Lords in the Saunders case was clearly correct
to assert that this was an inappropriate test. Indeed, Viscount Dilhorne
noted35 that it is doubtful whether Warrington J. intended to make such
a distinction the true and complete test. For, what the judge actually
held, on interpretation of National Provincial Bank of England v. Jack-
son,36 was that, when a complainant knows that the document he
executes deals with the property with which it actually deals (i.e., when
he intends to deal with that property), a difference as to contents is, no
28 29 30 31
Ibid., 1025. Ibid., 1026. [1908] 1 Ch 1, CA. [1907] 1 Ch 537.
32 33 34 35
Ibid., 549. [1969] 2 Ch 17, 32. Ibid., 31–2. [1971] AC 1004, 1022.
36
(1886) 3 ChD 1, CA.
matter how serious, insufficient. However, even adding this additional

element, the test is too formalistic, because it fails to deal with the
essence of non est factum: the absence of consent. Knowledge that the
impugned document deals with the property with which the complain-
ant intended to deal may be relevant to determining whether there is an
absence of consent, but, even added to the distinction between character
and class, on the one hand, and contents, on the other, it is not
necessarily conclusive. The test adopted in the Saunders case, however,
goes to the root of non est factum by requiring an absence of consent.
3.3.3 Carelessness
The law must impose restraints upon the possibility of avoiding a
contract because of a carelessly made mistake. This is recognised in both
common mistake37 and non est factum,38 where the complainant must
prove that he was not careless in being mistaken.
Although carelessness connotes an objective standard, it is inappropri-
ate to apply a completely objective standard, expecting, for example, the
same factual standard of care from one who is mentally impaired and
from a complainant of full age and understanding. For example, in the
Saunders case, an elderly woman inexperienced in property transactions
executed a document assigning her leasehold interest to the defendant,
but believing she was making a gift of it to her nephew. Viscount
Dilhorne felt that it was inappropriate to require the same factual
standard of care from her as would be required from an experienced
businessman.39 Further, Lord Reid said that complainants suffering from
some weakness are ‘not excuse[d] . . . from taking such precautions as
they reasonably can’.40 As such, the appropriate standard of care is such
as can be reasonably expected from the reasonable person in the com-
plainant’s position and circumstances.
Foster v. Mackinnon introduced the relevance of whether or not the
complainant had been careless (or ‘negligent’, as was the word there
used) in executing the impugned document. The Court of Common
Pleas upheld the trial judge’s direction that the verdict must be for the
complainant if his signature was induced by fraud, with the belief that he
37
Associated Japanese Bank v. Crédit du Nord [1989] 1 WLR 255, 268; Great Peace Shipping
v. Tsavliris Salvage [2002] EWCA Civ 1407; [2003] QB 679, 703.
38
39 40
Ibid., 1023. See also ibid., 1034, per Lord Pearson. Ibid., 1016 (my italic).
was signing a guarantee rather than the impugned bill of exchange, so

long as he ‘was not guilty of any negligence’.41 In Carlisle and Cumber-
land Banking Co. v. Bragg, the Court of Appeal held that the authority of
Foster v. Mackinnon was confined to negotiable instruments, but did not
rule out the relevance of negligence to other documents.42 Their Lord-
ships held that proof of negligence would not, per se, preclude the
complainant from establishing non est factum in these latter cases, but
would raise an estoppel against him, precluding him from asserting the
plea. Further, their Lordships held that legal negligence was required,
with proof that the complainant owed a duty of care to the one against
whom the plea was raised and of proximate causation of any loss that
party would suffer if the putative contract were declared void.43
Therefore, in addition to requiring legal negligence, as opposed to
mere factual negligence (i.e., unreasonableness), the early authorities
placed the burden upon the defendant. It was the defendant who sought
to rely upon the estoppel, so it was the defendant who had to establish it.
As such, whatever the label used, an absence of carelessness was not part
of the plea itself, but was separately relevant to the issue of estoppel.44
However, the House of Lords in the Saunders case exposed what their
Lordships felt was the fallacious basis in principle and authority of the
Bragg case. Lord Wilberforce asserted that it was wrong in principle to
require legal negligence, as opposed to mere factual unreasonableness, to
prevent the complainant successfully asserting his plea.45 Further, his
Lordship said that such a rule was based upon a misinterpretation of
Foster v. Mackinnon (which required the complainant to disprove factual
negligence) as applying only to negotiable instruments.46
Therefore, for a complainant to succeed with the plea, he must ‘prove
that he acted carefully’.47 This is a question of factual reasonableness,48
given the particular circumstances of the complainant, as explained
above.49
It is clear that the House of Lords in the Saunders case laid down proof
of an absence of careless as a prerequisite where the plea is raised against
41
(1869) 4 CP 704, 710.
42
[1911] 1 KB 489, 493, per Vaughan Williams LJ (the rest of the court agreed).
43 44
Ibid., 494. Ibid., 495, per Buckley LJ.
45
[1971] AC 1004, 1026. See also ibid., 1019, 1023, 1038, per Lords Hodson and Pearson
and Viscount Dilhorne.
46
Ibid., 1026–7. See also ibid., 1020, 1037, per Lords Hodson and Pearson.
47 48
Ibid., 1027, per Lord Wilberforce. Ibid., 1037, per Lord Pearson.
49
See p. 82, above.
an innocent third party.50 Further, there is no indication that their

Lordships sought to limit the requirement to such cases. However, the
plea in the case was raised against an innocent third party. Some
commentators argue that the rule applies only in such circumstances,51
but others treat it as a universal requirement.52
Although their Lordships did not fully address the reason for the
relevance of carelessness, it is submitted that it is a necessary policy
limitation upon the plea. As Lord Hodson said, the basis of the rule is
‘that no man may take advantage of his own wrong’.53 The importance of
this is that, in the absence of clear authority as to whether the requirement
extends to the plea in all circumstances, the basis of the rule helps to
determine whether it should do so. In this regard, Lord Reid noted that
the plea ‘generally arises where an innocent third party has relied on a
signed document in ignorance of the circumstances in which it was
signed’ and that, therefore, ‘there must be a heavy burden of proof on
the [complainant] . . . [who] . . . must prove . . . that he took all reasonable
precautions in the circumstances’.54 Recognition of the fact that part of
the basis of the rule is that the plea is normally raised against innocent
third parties might suggest that the rule does not apply, or should not
apply, in other cases. However, his Lordship expressly noted that the plea
was not confined to such cases, and he did not seek to suggest that an
absence of carelessness is not required in other cases. Further, Lord
Hodson’s justification of the rule, quoted above, was in absolute terms:
‘no man may take advantage of his own wrong’.55 Viscount Dilhorne56 and
Lord Wilberforce57 likewise stated the requirement in universal terms.
It is submitted that their Lordships probably intended to assert proof
of an absence of carelessness as a universal requirement of non est
factum, to limit the plea. However, as they were dealing with a case
against an innocent third party and did not expressly assert that the same
rule applies to all other cases, this is not a necessary conclusion. There-
fore, it is contended that the point remains open as a matter of authority
in England. In Australia, however, it has been said that carelessness only
precludes the plea as against an innocent party.58
50
[1971] AC 1004, 1016, 1019, 1023, 1027, 1034, per Lords Reid, Hodson, Wilberforce,
Pearson and Viscount Dilhorne.
51
Furmston (2006), 326; Beatson (2002), 335; Chen-Wishart (2010), 300.
52
Treitel (2007), 360; O’Sullivan and Hilliard (2008), 64; McKendrick (2010) 572.
53 54 55
[1971] AC 1004, 1019. Ibid., 1016. Ibid., 1019 (my italic).
56 57 58
Ibid., 1023. Ibid., 1027. Petelin v. Cullen (1975) 132 CLR 355, 360, HCA.
If the basis of the rule is that no man may benefit from his wrong, then
there is a direct conflict where the complainant and the party against
whom the plea is raised have both committed some wrong. It would be
tempting to seek to weigh the wrongs against one another to determine
who may succeed. However, this would lead to uncertainty. It is submit-
ted that a clear, predetermined rule is appropriate. Therefore, it is
contended that the basic position should be that the complainant is
required to prove that he was not careless, because he should not be able
to take advantage of his own careless conduct. However, if he proves that
the party against whom he raised the plea knew or should have known
of, or fraudulently or negligently induced, the absence of consent, then
that party’s unacceptable conduct should negate the requirement. This
would be a policy decision, to prioritise the desire to prevent procure-
ment of contracts by unacceptable means over the desire to ensure care
in contractual decisions. As the absence of consent necessarily flows
from the requisite mistake, inducement of the mistake is inducement
of the absence of consent. However, it must be noted that knowledge of
the absence of consent requires that the defendant has knowledge of
both the fact that the complainant made a mistake and the fact that the
mistake rendered his putative and intended acts contractually different
from his, the complainant’s, perspective.
3.3.4 Weakness
In the Saunders case, Lord Reid noted that, originally, non est factum was
developed for cases where the complainant did not sign the impugned
document, but was later extended to cover cases where blind or illiterate
complainants signed the document believing its effect was fundamen-
tally different from its actual effect.59 His Lordship then said that non est
factum
must also apply in favour of those who are 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
be from defective education, illness or innate incapacity.60
First, one should note that the substance of this test is similar to that in
mental incapacity, because it requires an inability in the complainant, at
the time of conclusion, to understand the nature of the putative
59 60
[1971] AC 1004, 1015–16, HL. Ibid., 1016.
contractual act: in Lord Reid’s words, the ‘purport of [the impugned]

document’.61 The test in mental incapacity requires an inability to
understand the nature of the contractual act even if it is explained
to the complainant;62 whereas non est factum requires merely an inability
to understand without an explanation. Nonetheless, where the complainant
does not receive a proper explanation, the weakness necessarily establishes
an absence of consent, in the same way mental incapacity does.63
Second, his Lordship in this passage was merely indicating one set of
circumstances in which the plea might be available; he was not asserting
that this, or any, weakness is a prerequisite. Indeed, his Lordship said
that ‘there may be cases where this plea can properly be applied in favour
of a man of full capacity’; although, only ‘in very exceptional
circumstances’.64
Viscount Dilhorne accepted
that a man of full age and understanding who can read and write cannot
be allowed to repudiate his signature to a document which he knows will
have legal consequences if he signs it without reading it.65
However, his Lordship said ‘that this is more an example of a case where
the plea will fail than a rule of general application’.66 Of course, without
it being made clear why the plea would fail in such a case, if not because
of the complainant’s ‘full age and understanding’,67 this comment is
ambiguous. However, it is submitted that the plea may fail in the
example because the complainant will, on such facts, normally have
been careless in not reading the document. Although Viscount Dilhorne
noted that he does ‘not think it can be said that in every case failure to
read a document by a literate person amounts to carelessness’,68 mere
literacy does not establish that a person is capable of full understanding.
Therefore, it is submitted that Viscount Dilhorne was not asserting that
a weakness is a prerequisite of the plea.
Similarly, Lord Wilberforce rejected the contention that the plea
should be abolished, because
[t]here are still illiterate or senile persons who cannot read, or apprehend,
a legal document; there are still persons who may be tricked into putting
61
Ibid.
62
McLaughlin v. Daily Telegraph (No. 2) (1904) 1 CLR 243, 269, HCA, per Griffith CJ.
63 64 65 66
See p. 55, above. [1971] AC 1004, 1016, HL. Ibid., 1021. Ibid.
67 68
Ibid. Ibid., 1023.
their signature on a piece of paper which has legal consequences totally

different from anything they intended.69
In this passage, his Lordship distinguished between illiterate and senile

persons and persons tricked into signing. This clearly suggests that his
Lordship believed that the plea may succeed in the latter class of cases
even when the complainant is of full understanding. Lord Pearson
expressly reserved his opinion on this issue.70
It is at least clear that their Lordships did not rule out the possibility of
non est factum being successfully pleaded by a person of full age and
understanding. Indeed, it is submitted that the overall tenor of the
judgments suggests that their Lordships expressly envisaged that this is
possible, but were understandably at pains to ensure that it does not
allow the plea to extend too widely.71 That a weakness is not a prerequis-
ite is supported by Buckley LJ in Carlisle and Cumberland Banking Co.
v. Bragg.72
Nonetheless, it is interesting to note that, in leaving open the (albeit
remote) possibility that the plea might be successfully invoked by a
complainant of full age and understanding, Lord Reid said that this
may be so ‘particularly when he was led to believe that the document
which he signed was not one which affected his legal rights’.73 His
Lordship’s treatment of the complainant’s weakness and the fact that
he was misled as potential alternatives raises the possibility that they are
actually de facto alternative requirements of the plea, inasmuch as one or
the other must be established. For, unless the complainant suffers from
some condition that renders him incapable of understanding the nature
and effect of execution of the document or is the victim of some trick
inducing his mistake, it is unlikely that he will be able to prove that he
was not careless in coming to the relevant mistake. In that sense, one of
these elements would be a de facto requirement in all cases where proof
of an absence of carelessness was required.74 It is submitted that this is,
in reality, the true position.
Even accepting that a weakness is not a prerequisite, it is important to
determine what type of weakness can be relevant and why this is so. The
leading authority regarding a relevant weakness in non est factum is Lord
Reid’s statement in the Saunders case that the plea
69 70 71
Ibid., 1025. Ibid., 1035. Chitty (2008), 486.
72 73
[1911] 1 KB 489, 496. Cf. McKendrick (2010), 572. [1971] AC 1004, 1016, HL.
74
See pp. 82–5, above (carelessness probably a universal requirement, but should be
limited to pleas against innocent parties).
must . . . apply in favour of those who are 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
be from defective education, illness or innate incapacity.75
As has been noted, proof of such a weakness establishes an absence of

consent from the complainant, unless a proper explanation was given.
Therefore, it is submitted that it should be an alternative to proof of a
sufficient difference between the nature and effect of the complainant’s
intended act and the putative contractual act, which also establishes that
the complainant did not consent to the putative contract.76 However, as
their Lordships in the Saunders case asserted that the requisite degree of
difference is a prerequisite, this is not, as the law stands, the case.
Therefore, it would seem that a complainant gets no benefit from
proving a weakness, save for its relevance to potentially establishing that
he was not careless.
3.3.5 Trickery/unacceptable conduct

In the classic case of non est factum, the defendant (or someone else, to
the defendant’s knowledge) deliberately misrepresented the nature and
effect of the impugned document to the complainant.77 Therefore, this
misrepresentation will normally be the reason that the complainant
believed that the effect of his act was fundamentally different from the
actual effect of the impugned document, if upheld. However, this does
not make it a prerequisite of the plea. Indeed, it is submitted that the
presence of unacceptable inducement is, in many cases, merely a factual
consequence of the requirement of carelessness. For, it has already been
noted that, without at least one of (1) a relevant weakness or (2)
unacceptable inducement, it is unlikely that the complainant can prove
that he was not careless in executing a document the nature and effect of
which is fundamentally different from the document he intended to
execute.78
In Gallie v. Lee, Salmon LJ said that
75 76
[1971] AC 1004, 1016, HL. See pp. 30, 79–82, above.
77
E.g., Foster v. Mackinnon (1869) 4 CP 704; Lewis v. Clay (1897) 67 LJQB 224; [1897] All
ER Rep. Ext. 1738; Howatson v. Webb [1907] 1 Ch 537; affirmed [1908] 1 Ch 1, CA;
78
See p. 87, above.
in every reported case, save one, in which the plea has succeeded, the party
relying on it has proved that he was induced to sign by a fraudulent
misrepresentation of the [impugned] document’s true character or class.79
The one exception to which his Lordship referred was the Irish case of
Bank of Ireland v. M’Manamy.80 His Lordship accepted that ‘[i]t may be
that logically there is no reason why the relevant mistake should have to
be induced by fraud to be effective for the purpose of a plea of non est
factum’.81 However, he also expressed the opinion that non est factum
should not be extended beyond the classic fact-pattern to cover cases
where there was no fraudulent representation. Therefore, it is submitted
that his Lordship accepted that there was no rule of law requiring a
fraudulent misrepresentation in non est factum, but was of the opinion
that this rule should be developed, as a policy decision to limit the plea.
The Privy Council in Hasham v. Zenab asserted that the plea ‘requires
proof of a false statement’, and this forms the ratio of rejection of the
plea.82 Similarly, the Court of Appeal in Mercantile Credit v. Hamblin
held that the plea could not succeed because there had been no false
representation made to the complainant concerning the nature or effect
of the impugned documents.83 Pearson LJ, with whom Sellers LJ
expressly agreed, also strongly suggested that the intended effect of the
transaction (a mortgage to raise around £1,000 on the security of the
complainant’s car) was insufficiently different from its actual effect if it
stood (a sale, and resale by hire purchase, of the car, from which the
complainant would receive around £1,000 and repay an amount similar
to what one would expect to repay on a reasonable loan).84 Further,
Salmon LJ rejected the plea because he held that it could not be relevant
to a case where one signed a document in blank.85 Therefore, it is
arguable that the absence of a false representation does not form the
ratio of the case.
In the Saunders case, Lord Reid said that the plea may be available to a
person not suffering from any weakness ‘particularly when he was led to
believe that the document which he signed was not one which affected
his legal rights’.86 The word ‘particularly’ makes it clear that his Lordship
believed there might be other circumstances in which the plea would be
available to a person of full age and understanding. Of course, one may
be misled as to some fact, relating to the nature and effect of the
79 80 81
[1969] 2 Ch 17, 45. [1916] 2 IR 161. [1969] 2 Ch 17, 45.
82 83
[1960] AC 316, 335. [1965] 2 QB 242, 268, 280, per Pearson and Salmon LJJ.
84 85 86
Ibid., 267–8. Ibid., 279–80. [1971] AC 1004, 1016, HL (my italic).
impugned document, other than whether or not it affects one’s legal

rights. It is thus arguable his Lordship still felt some form of trickery/
misleading was required.
Lord Wilberforce suggested that the plea should be available to
illiterate or senile persons who cannot read, or apprehend, a legal docu-
ment; [and] . . . persons who may be tricked into putting their signature
on a piece of paper which has legal consequences totally different from
anything they intended.87
This strongly suggests that his Lordship believed that trickery was not a
prerequisite of the plea, at least where the complainant suffered from a
relevant weakness.
Some commentators assume that unacceptable conduct inducing the
mistaken belief is required.88 Others, however, do not mention it in their
treatment of non est factum.89 Still others note that it will normally be
present, but assert that it is not a prerequisite,90 or at least do not assert
that it is.91 In Foster v. Mackinnon, Byles J. said:
[The impugned document] is invalid not merely on the ground of fraud,
where fraud exists, but on the ground that . . . [the complainant] never
intended to sign, and therefore in contemplation of law never did sign,
the contract.92
Lord Wilberforce in the Saunders case explained that this is because, in

non est factum, ‘it is the lack of consent that matters, not the means by
which this result was brought about’.93 Therefore, it is submitted that, as
a matter of authority, it has not been determined that any unacceptable
conduct, by the defendant or anyone else, is a prerequisite of the plea.
As for whether unacceptable conduct inducing the complainant’s
mistake should be required, it is accepted that there is a need to keep
non est factum within manageable bounds. Further, the defendant’s
unacceptable inducement of an absence of consent is a sufficient reason
to render it operative. Also, it is submitted that the only other sufficient
reasons are that the defendant: (1) had actual or constructive knowledge
of the absence of consent; or (2) himself did not consent to the putative
contract.94 It is factually unlikely, but possible, that the latter will be
87 88 89
Ibid., 1025. Furmston (2006), 321. Beatson (2002); McKendrick (2010).
90
Cartwright (2007), 454; Chitty (2008), 485; Chen-Wishart (2010), 298; O’Sullivan and
Hilliard (2008), 64.
91 92
Treitel (2007). (1869) 4 CP 704, 711 (my italic).
93 94
[1971] AC 1004, 1026, HL. See p. 23, above.
conclusion 91
relevant in cases of non est factum. Indeed, it is accepted that the

defendant’s unacceptable inducement of the complainant’s mistake is
likely to be the main reason for rendering the absence of consent
operative in cases of non est factum. However, it is submitted, first, that
it should be recognised that this is the role of unacceptable inducement
by the defendant, when present; and second, that the defendant’s know-
ledge of the absence of consent (and, theoretically, an absence of consent
from the defendant) should also be sufficient.
Therefore, it is submitted that unacceptable inducement of the
absence of consent should not be required. However, it is a sufficient
reason to render the absence of consent operative, provided that it
amounts to unacceptable inducement by, or to the knowledge of, the
defendant. As a matter of fact, such conduct is likely to be present in
most successful pleas of non est factum. For, if the complainant did not
suffer from a relevant weakness, it is likely that he was careless in coming
to the requisite mistaken belief, unless that mistake was induced by the
conduct of another, which will normally be unacceptable conduct by the
defendant.
3.4 Conclusion
The underlying rationale of non est factum is clear: the complainant
intended an act the nature and effect of which is fundamentally different
from the nature and effect of executing the impugned document. There-
fore, he did not consent to the putative contract supposedly effected by
it. Additionally, the complainant must, at least as against innocent
parties, prove that he was not careless in executing the document under
this mistaken belief. These requirements are established by the Saunders
case.95
Further, the defendant will normally have engaged in some form of
unacceptable conduct inducing the complainant’s mistake (thus absence
of consent), so there will normally be an appropriate reason to render
the absence of consent operative, and the plea renders the putative
contract void. In this sense, the plea fits my first category of vitiation.
Nonetheless, unacceptable inducement of the mistake by the defend-
ant is not a prerequisite. Further, even if the complainant were unable to
prove that he was not careless without proving that his absence of
95
[1971] AC 1004, HL.
consent was caused either by a relevant weakness or unacceptable con-
duct, first, the relevant conduct might not be the defendant’s unaccept-
able conduct, and the defendant might have no knowledge of it; and,
second, it is submitted that a complainant’s weakness is insufficient to
render his absence of consent operative, unless the defendant has know-
ledge of it and this amounts to knowledge of the absence of consent and
thus renders entrance into the putative contract unacceptable. Therefore,
the plea must develop, to require in all cases an additional factor to
render the absence of consent operative, to overcome the objective
principle. The three relevant additional factors are the defendant’s: (1)
knowledge of the absence of consent; (2) unacceptable inducement of it;
or (3) own absence of consent.96
96
See p. 23, above.

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3

Non est factum in English law

plea. It will be shown that a complainant cannot normally prove an

3.2 The underlying rationale of vitiation

was brought about’,9 and that, in struggling to set the appropriate

Additionally, in the classic case, the defendant fraudulently induced the

reason to render the absence of consent operative. Nonetheless, it is a

3.3 The elements of non est factum

3.3.2 Absence of consent: the requisite degree of difference

purport (nature and effect) of the impugned document.20 Therefore,

matter how serious, insufficient. However, even adding this additional

was signing a guarantee rather than the impugned bill of exchange, so

an innocent third party.50 Further, there is no indication that their

contractual act: in Lord Reid’s words, the ‘purport of [the impugned]

their signature on a piece of paper which has legal consequences totally

In this passage, his Lordship distinguished between illiterate and senile

must . . . apply in favour of those who are permanently or temporarily

As has been noted, proof of such a weakness establishes an absence of

3.3.5 Trickery/unacceptable conduct

impugned document, other than whether or not it affects one’s legal

Lord Wilberforce in the Saunders case explained that this is because, in

relevant in cases of non est factum. Indeed, it is accepted that the

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