[45.0]: NON EST FACTUM
“IT IS NOT MY DEED”
[45.1]: INTRODUCTION:
Non est factum, Latin for "it is not my deed," is a legal concept in contract law where a party can argue that a contract is not valid because they did not understand what they were signing at the time. This defense essentially argues that there was no meeting of the minds between parties, a key element to forming an enforceable contract.
The concept of non est factum has a long history in English common law dating back to the early 1700s. Over time, courts have established key elements that need to be proven for a non est factum defense to apply. These typically include showing that the defendant was mistaken as to the nature of the document signed due to an excusable cause like illiteracy or blindness, and did not intend to sign the contract as it was written.
The legal concept of non est factum originated in English common law in the early 1700s, first recognized in a 1703 court decision. In that case, an illiterate man signed a deed thinking it was a guarantee, but it turned out to be a property transfer. The judge ruled that the deed was void because the signer did not understand what he was signing.
Over the next few centuries, English common law further developed non est factum through precedent. Key cases like Thoroughgood's Case in 1793, Foster v Mackinnon in 1869, and Saunders v Anglia Building Society in 1971 refined the elements and application of non est factum defenses. Through case law, courts have made rulings on what constitutes excusable vs negligent behavior by defendants and what level of misunderstanding is required.
Modern non est factum law has roots tracing back over 300 years. Key elements were established through seminal cases that are still cited as precedent today. Courts continue to reference this well-developed area of common law when evaluating contract disputes involving consent and understanding.
[45.2]: KEY ELEMENTS OF NON EST FACTUM:
For a non est factum defense to succeed, the defendant generally must prove three key elements:
They were mistaken and misunderstood the nature of the document signed at the time of signing due to an excusable cause like illiteracy or blindness. Signing when reasonably able to understand is typically not excusable. The other party (or their agents) knew about this misunderstanding but did not prevent or clear it up, making their behavior unfair. The defendant can show they would not have signed the contract if they had fully understood what it contained. Their misunderstanding was substantial enough to negate meaningful consent.
In addition, the defendant must show they were not careless in signing the contract and made reasonable efforts to understand based on their capabilities. Overall, there must have been no true "meeting of the minds."
Meeting these elements sets grounds for an unfair contract to be considered void under non est factum. However, courts still weigh equities on a case by case basis. Non est factum aims to prevent exploitation while still upholding contracts signed voluntarily with proper understanding.
[45.3]: INTEGRATING NON EST FACTUM PRINCIPLES IN LEGAL PRACTICE
Non est factum is a legal principle that allows a party to void a contract by claiming they did not understand what they were signing at the time of signing. As legal professionals, integrating awareness of non est factum risks into contract processes can prevent issues down the line.
Training Legal Staff on Non Est Factum Risks
It is important to train staff on situations that present higher non est factum risks, such as:
Clients with disabilities or language barriers that could prevent full comprehension Complex contract terms and technical language Clients experiencing stressful life events or emotional distress
With proper training, staff can better identify vulnerable clients and take steps to confirm understanding, like summarizing key terms in plain language or allowing more time for review.
Customizing Contract Templates to Prevent Non Est Factum Issues
Customizing contract templates can reduce non est factum risks for common client groups. Some best practices include:
Offering versions with simplified language for elderly clients, non-native speakers etc. Highlighting key clauses like arbitration agreements in bold or summaries Requiring initials beside important sections to confirm they were read
Building consent and comprehension checks into templates makes them stronger against potential non est factum claims.
Reviewing Policies to Uphold Non Est Factum Standards
Firms should examine policies around consent, capacity, and vulnerability to uphold non est factum principles, such as:
Requiring staff to ask probing questions if comprehension seems lacking Allowing a neutral party to explain contracts for emotionally distressed clients Enabling staff to halt signings if capacity or consent issues emerge
Updating policies demonstrates a firm-wide commitment to meaningful consent, helping avoid problematic contracts.
[45.4]: CONCLUSION:
Non est factum is a legal concept that allows a party to void a contract they signed due to a fundamental misunderstanding of the contract’s terms or nature at the time of signing. This brief overview highlights why the concept remains an important defense in contract disputes.
Core Takeaways on Non Est Factum in Legal Context
Non est factum allows a contract signatory to argue they did not fully understand what they were signing due to misrepresentation or inability to comprehend the contract language. This can make the contract void. While rarely used successfully, non est factum remains an avenue to contest questionable contracts, especially for vulnerable parties like the elderly or those with disabilities. The concept underscores the need for clear communication and transparency around contract terms to prevent misunderstandings that could lead to disputes down the line.
Final Thoughts on the Impact of Non Est Factum on Contract Law
Non est factum ensures that consent and understanding remain central pillars of a legally binding agreement. Although the defense faces high burdens of proof, its mere existence pressures contract drafters to employ best practices around readability, transparency and signatory comprehension. By limiting enforceability of incomprehensible agreements, non est factum ultimately upholds fairness in contracting.
OGUNLEYE V STATE {1991} 3 NWLR {Pt. 177}
Learn a Maxim a day
