Kusign bila kuielewa document

Mwandwanga

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Dec 2, 2011
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Wadau wa sheria naombeni msaada wa kujuzwa kesi za kusaini pasipo kuilewa vyema pepa husika

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Langu

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Documents Mistakenly Signed

Question:What is the plea of non est factum?
Answer: LORD REID

The plea of non est factum obviously applies when the person sought to be held liable did not in fact sign the document. But at least since the sixteenth century it has also been held to apply in certain cases so as to enable a person who in fact signed a document to say that it is not his deed.

Obviously any such extension must be kept within narrow limits if it is not to shake the confidence of those who habitually and rightly rely on signatures when there is no obvious reason to doubt their validity.

Originally this extension appears to have been made in favour of those who were unable to read owing to blindness or illiteracy and who therefore had to trust someone to tell them what they were signing.

I think it 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.

But that does not excuse them from taking such precautions as they reasonably can. The matter generally arises where an innocent third party has relied on a signed document in ignorance of the circumstances in which it was signed, and where he will suffer loss if the maker of the document is allowed to have it declared a nullity.

So there must be a heavy burden of proof on the person who seeks to invoke this remedy. He must prove all the circumstances necessary to justify its being granted to him, and that necessarily involves his proving that he took all reasonable precautions in the circumstances.

I do not say that the remedy can never be available to a man of full capacity. But that could only be in very exceptional circumstances : certainly not where his reason for not scrutinising the document before signing it was that he was too busy or too lazy. In general I do not think he can be heard to say that he signed in reliance on someone he trusted.

But, particularly when he was led to believe that the document which he signed was not one which affected his legal rights, there may be cases where this plea can properly be applied in favour of a man of full capacity.

-- cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question: When is a plea of non est factum available?
Answer: LORD PEARSON

In my opinion, the plea of non est factum ought to be available in a proper case for the relief of a person who for permanent or temporary reasons (not limited to blindness or illiteracy) is not capable of both reading and sufficiently understanding the deed or other document to be signed.

By "sufficiently understanding" I mean understanding at least to the point of detecting a fundamental difference between the actual document and the document as the signer had believed it to be. There must be a proper case for such relief.

There would not be a proper case if (a) the signature of the document was brought about by negligence of the signer in failing to take precautions which he ought to have taken, or (b) the actual document was not fundamentally different from the document as the signer believed it to be. I will say something later about negligence and about fundamental difference.

In the present case (he plaintiff was not at the material time a person who could read, because on the facts found she had broken her spectacles and could not effectively read without them.

In any case her evidence (unless it was deliberately false, which has not been argued) shows that she had very little capacity for understanding legal documents and property transactions, and I do not think a reasonable jury would have found that she was negligent.

In my opinion, it would not be right to dismiss the plaintiff's appeal on the ground that the principle stated by the Master of the Rolls is applicable to her case. I do not think it is.

The principle as stated is limited to a case in which it is apparent on the face of the document that it is intended to have legal consequences.

That allows for possible success of the plea in a case such as Lewis v . Clay [1897] 67 L.J. Q.B. 224. where Clay had been induced to sign promissory notes by the cunning deception of a false friend, who caused him to believe that he was merely witnessing the friend's signature on several private and highly confidential documents, the material parts of which had been covered up.

I wish to reserve the question whether the plea of non est factum would ever be rightly successful in a case where

(1)it is apparent on the face of the document that it is intended to have legal consequences;
(2) the signer of the document is able to read and sufficiently understand the document;
(3) the document is fundamentally different from what he supposes it to be;
(4) he is induced to sign it without reading it.

It seems unlikely that the plea ought ever to succeed in such a case, but it is inadvisable to rule out the wholly exceptional and unpredictable case.

-- cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question: When is the plea of non est factum NOT available?
Answer: LORD REID

I do not say that the remedy can never be available to a man of full capacity. But that could only be in very exceptional circumstances : certainly not where his reason for not scrutinising the document before signing it was that he was too busy or too lazy.

In general I do not think he can be heard to say that he signed in reliance on someone he trusted. But, particularly when he was led to believe that the document which he signed was not one which affected his legal rights, there may be cases where this plea can properly be applied in favour of a man of full capacity.

The plea 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. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without making any enquiry as to their purpose or effect.

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 a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.

Further the plea cannot be available to a person whose mistake was really a mistake as to the legal effect of the document, whether that was his own mistake or that of his adviser. That has always been the law and in this branch of the law at least I see no reason for any change.

cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question: What is the extent of the difference between that which was signed to that which he believed he signed for the plea of non est factum to succeed?
Answer:
LORD REID

Finally there is the question to what extent or in what way must there be a difference between that which in fact he signed and that which he believed he was signing.

In an endeavour to keep the plea within bounds there have been many attempts to lay down a dividing line. But any dividing line suggested has been difficult to apply in practice and has sometimes led to unreasonable results. In particular I do not think that the modern division between the character and the contents of a document is at all satisfactory.

Some of the older authorities suggest a more flexible test so that one can take all factors into consideration. There was a period when here as elsewhere in the law hard and fast dividing lines were sought, but I think that experience has shewn that often they do not produce certainty but do produce unreasonable results.

There must I think be a radical difference between what he signed and what he thought he was signing-or one could use the words "fundamental" or "serious" or "very substantial". But what amounts to a radical difference will depend on all the circumstances.

If he thinks he is giving property to A whereas the document gives it to B the difference may often be of vital importance, but in the circumstances of the present case I do not think that it is. I think that it must be left to the Courts to determine in each case in light of all the facts whether there was or was not a sufficiently great difference.

The plea non est factum is in sense illogical when applied to a case where the man in fact signed the deed. But it is none the worse for that if applied in a reasonable way.

LORD HODSON

It is better to adopt the test which is supported by the authorities prior to Howatson v. Webb and is sound in principle. This is that the difference to support a plea of non est factum must be in a particular which goes to the substance of the whole consideration or to the root of the matter.

Where, as in this case, there is an error of personality it may or may not be fundamental ; the question cannot be answered in isolation. There is a distinction between a deed and a contract in that the former does not require consensus and the latter does. Hence, in the case of deeds error of personality is not necessarily so vital as in the case of contracts.

LORD PEARSON

The degree of difference required: The judgments in the older cases used a variety of expressions to signify the degree or kind of difference that, for the purposes of the plea of non est factum, must be shown to exist between the document as it was and the document as it was believed to be.

More recently there has been a tendency to draw a firm distinction between (a) a difference in character or class, which is sufficient for the purposes of the plea, and (b) a difference only in contents, which is not sufficient.

This distinction has been helpful in some cases, but, as the judgments of the Court of Appeal have shown, it would produce wrong results if it were applied as a rigid rule for all cases. In my opinion, one has to use a more general phrase, such us "fundamentally different" or "radically different" or "totally different".


-- cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question:What quantum of evidence is necessary to establish a plea of non est factum?
Answer: LORD HODSON

The plea of non est factum requires clear and positive evidence before it can be established. As Donovan L.J. said, delivering the judgment of the Court of Appeal in Muskham Finance Ltd. v. Howard [1963] 1 Q.B. 904 at page 912: "The plea of non est factum is a plea which must necessarily be kept within narrow limits".

To take an example, the man who in the course of his business signs a pile of documents without checking them takes the responsibility for them by appending his signature. It would be surprising if he was allowed to repudiate one of those documents on the ground of non est factum.

-- cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question:Who has the burden of proving non est factum?
Answer:LORD HODSON

Want of care on the part of the person who signs a document which he afterwards seeks to disown is relevant. The burden of proving non est factum is on the party disowning his signature : this includes proof that he or she took care.

There is no burden on the opposite party to prove want of care. The word "negligence" in this connection does not involve the proposition that want of care---is irrelevant unless there can be found a specific duty to the opposite party to take care. Carlisle & Cumberland Banking Company v Bragg [1911] 1 K.B. 489 was on this point, in my opinion, wrongly decided and seems to be due to a confusion of thought by introducing the kind of negligence which founds an action in a tort for injury.

A person may be precluded by his own negligence, carelessness or inadvertence from averring his mistake. The word "estoppel" has often been used in this context but, for my part, I agree with Salmon L.J. that this is not a true estoppel but an illustration of the principle that no man may take advantage of his own wrong.

If it were treated as estoppel one would have to face the argument put forward by the Appellant that if there is no deed there can be no estoppel established by the document itself.

If there was no estoppel by deed there was no other foundation for that doctrine to be invoked since there was no conduct by way of representation to the building society that the questioned deed was good.

-- cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question: What are the requisites for the plea of non est factum?
Answer:
VISCOUNT DILHORNE:-- x x x

What are the matters which have to be established for the plea to succeed? First, in my opinion, it must be shown that the document signed was radically different in character from that which the signer thought it was. In Foster v . Mackinnon (1869) L.R.4 C.P. 704 the defendant had been deceived into indorsing a bill when he believed it to be a guarantee. Byles J., delivering the judgment of the court, said at p.711:

It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs ; then, at least if there be no negligence, the signature so obtained is of no force.

And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.

One cannot tell the nature and character of a document without having regard to its contents, but what I think Warrington, J., was endeavouring to do was to distinguish between cases where there is deceit as to the actual contents to such a degree as to be deceit as to its nature and character and cases where there is not deceit as to the nature and character of the instrument but deceit as to some provision in it.

But he was, I think, wrong to say that misstatement of a material clause will never render a document void. Whether it does so or not must depend on whether it appears that the document as described is so far different from what it in fact is as to amount to a misrepresentation of its nature and character.

I agree with my noble and learned friend, Lord Pearson, that the difference between what a document is thought to be may be in substance or in kind.

It will not suffice if the signer thought that in some respect it would have a different legal effect from what it has; nor will it suffice if in some respects it departs from what he thought it would contain. The difference, whether it be in kind or substance, must be such that the document signed is entirely-the word used by Byles, J.-or fundamentally different from that which it was thought to be so that it can be said that it was never the signer's intention to execute the document.

-- cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question:
Answer:
Question: What is the extent of care needed for the plea of non est factum to succeed?
Answer:VISCOUNT DILHORNE

It is, I think, clearly established that the plea of non est factum cannot succeed if the signer of the document has been careless. In Foster v . Mackinnon (supra) Byles, J., spoke of "negligence".

The use of this word may have led to the decision in Carlisle & Cumberland Banking Co. v . Bragg [1911] 1 K.B. 489, where it was held that there could not be negligence in the execution of a document unless a duty was owed to the person who acted upon it. I agree with the many criticisms of that decision, and I think it was wrong. Perhaps it is better to use the word "careless".

Is it possible to define what will amount to a lack of care in the signing of a document? While I agree with Lord Denning that a man who signs a document without reading it, whether he does not read it because of the trust he places in another or on account of pressure of business, cannot, if of full age and understanding, repudiate his signature by reliance on the plea non est factum, I do not think it can be said that in every case failure to read a document by a literate person amounts to carelessness.

Should the same standard of care be expected of an elderly spinster who might, if she read the document, be none the wiser and who might not be able to distinguish between a mortgage and a conveyance? I am inclined to think not.

In National Provincial Bank v . Jackson [1886] 33 Ch. D. 1, two sisters executed deeds relating to their property without reading them and without having them read to them and explained. They did so in reliance upon their brother, a solicitor. Cotton, L.J., said that they could not have been said to have been guilty of negligence in so doing.

It was held that their plea of non est factum failed as they knew that the deeds they signed dealt in some way with their houses. In every case the person who signs the document must exercise reasonable care, and what amounts to reasonable care will depend on the circumstances of the case and the nature of the document which it is thought is being signed.

It is reasonable to expect that more care should be exercised if the document is thought to be of an important character than if it is not.
-- cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question: What is the effect of a plea of non est factum being established?
Answer: LORD WILBERFORCE:-- x x x

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, i.e., more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended Many other expressions, or adjectives, could be used -" basically" or "radically" or "fundamentally".

In substance, the test does not differ from that which was applied in the leading cases of Thorough- good (1581 2 Co. Rep. 9b) and Foster v . Mackinnon (1869) L.R. 4 C.P. 704, except in moving from the character/contents distinction to an area in better understood modern practice.

-- cited from Saunders v Anglia Building Soc (sub nom Gallie v Lee)
[1970] UKHL 5 (09 November 1970)
Question: As between an innocent third party and the pleader of non est factum who was careless, who should bear the loss? Is the defence of non est factum available to a party who, knowing that a document has legal effect, carelessly fails to read the document thereby permitting a third party to perpetrate a fraud on another innocent party?
Answer: ESTEY J

The decision of the House of Lords in Saunders has been considered by a number of Canadian courts. In Commercial Credit Corporation Ltd. v. Carroll Bros. Ltd. (1971), 20 D.L.R. (3d) 504 (Man. C.A.), the question of whether the principles laid down in Saunders are good law in Canada was left open by the Court. In a number of more recent decisions, however, the reasoning of the House of Lords has been directly applied: Custom Motors Ltd. v. Dwinell (1975), 61 D.L.R. (3d) 342, 12 N.S.R. (2d) 524 (N.S.C.A.); Bank of Nova Scotia v. Battiste (1979), 22 Nfld. & P.E.I.R. 192 (Newfoundland Trial Division); Canadian Imperial Bank of Commerce v. Kanadian Kiddee Photo Ltd. and Romano, [1979] 3 W.W.R. 256 (B.C.S.C).

In my view, with all due respect to those who have expressed views to the contrary, the dissenting view of Cartwright J. (as he then was) in Prudential, supra, correctly enunciated the principles of the law of non est factum.

In the result the defendants-respondents are barred by reason of their carelessness from pleading that their minds did not follow their hands when executing the mortgage so as to be able to plead that the mortgage is not binding upon them. The rationale of the rule is simple and clear.

As between an innocent party (the appellant) and the respondents, the law must take into account the fact that the appellant was completely innocent of any negligence, carelessness or wrongdoing, whereas the respondents by their careless conduct have made it possible for the wrongdoers to inflict a loss.

As between the appellant and the respondents, simple justice requires that the party, who by the application of reasonable care was in a position to avoid a loss to any of the parties, should bear any loss that results when the only alternative available to the courts would be to place the loss upon the innocent appellant. In the final analysis, therefore, the question raised cannot be put more aptly than in the words of Cartwright J. in Prudential, supra, at p. 929: "…which of two innocent parties is to suffer for the fraud of a third".

The two parties are innocent in the sense that they were not guilty of wrongdoing as against any other person, but as between the two innocent parties there remains a distinction significant in the law, namely that the respondents, by their carelessness, have exposed the innocent appellant to risk of loss, and even though no duty in law was owed by the respondents to the appellant to safeguard the appellant from such loss, nonetheless the law must take this discarded opportunity into account.

-- cited from Marvco Colour Research Ltd. v. Harris,
[1982] 2 SCR 774



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Mwandwanga

JF-Expert Member
Dec 2, 2011
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