When can we sign? – The non est factum edition. ✒️
In a previous blog I shared about the importance of reading and understanding what you are signing; because a person is usually bound by their signature to a document (save and except in certain circumstances).
The essence of the principle of non est factum (it is not my deed) is that the person signing believed that the document that they signed had one character or effect where in fact its character or effect was quite different.
This principle (or plea) is not available to anyone who was content to sign without taking the trouble to try to find out the general effect of the document that they are signing (at the very least).
A document or Deed may be null, void and of no effect by reason of the party not knowing what they were signing. However, the elements of non est factum have to be proved.
For non est factum to succeed, the party must show that:
(a) he was under a disability
(b) the document which he had signed was fundamentally different from the document he thought he was signing; and
(c) he was not careless in that he had not failed to take proper precautions to ascertain the significance of the document he was signing – Lloyd’s Bank PLC v Waterhouse [1993] 2FLR 97
“Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature–by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences–then, if he does not take the trouble to read it but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented, to all those into whose hands it may come, that it is his document…” – Gallie v Lee and Another [1969] 1 All ER 1062 per Lord Denning at p.1072
“The plea (non est factum) cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document… But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such belief unless he had taken steps or been given information which gave him some grounds for his belief…” – Saunders v Anglia Building Society Limited [1970] 3 All ER 961, p. 961.
If the deed was not your deed at all:
- You are not bound by the signature.
- The document is a nullity.
- No one can claim title under it, not even an innocent purchaser who bought on the faith of it, nor an innocent lender who lent their money on the faith of it. No matter that this innocent person acted in the utmost good faith, without notice of anything wrong, they take nothing by the document.
Gallie v Lee and Another [1969] 1 All ER 1062 per Lord Denning at pp. 1066 – 1067
For part one of this topic: https://tenorequelegalandconsulting.com/when-can-we-sign/