Thus, non est factum was considered as the defense. The realtor wanted several agreements voided because his defense was he did not understand real estate development well enough nor did he know English. This could be due to illiteracy, although illiteracy on its own may not be enough.Īn example of illiteracy not being enough to void a contract involves a realtor and a real estate developer. ![]() This mode of defense has strict requirements, which requires the defense to confine its cases to those defendants who were unable to read the agreement. The use of non est factum as a defense is prevalent among defendants who are intent on evading a contract because it renders a signed contract/agreement void and, therefore, unenforceable. The person using non est factum must show two things: that they were not careless and that the document they initially signed was not the same document they thought they were signing. When using non est factum as a defense, its application is restricted to certain circumstances. In cases where non est factum is the plea, the aim is to strike a balance between the needs of the person who signed the document and whose consent is not valid and protecting any third party who may be innocent, having only acted on what they thought was a properly executed agreement. This would be an instance where non est factum would be used as a defense to avoid the contract.īecause of the complexity of non est factum, a case by case resolution is more advantageous than applying a generic rule or principle when governing the cases. In this situation, the person signed the document under the mistaken impression of what the document was for. One type of mistake involves a party that is mistaken in the kind of contract to be signed.Īn example would be someone signing away the deed to their home thinking the document they signed was simply a guarantee for a debt held by another person or they were witnessing a will. A common law has evolved to prevent abuse of legal provisions and created rules dealing with mistakes. To put in place a blanket rule that would make contracts in this situation unenforceable could be problematic. If either party or both parties do not understand any term in the contract, there is no consensus ad idem. ![]() The Latin phrase "consensus ad idem" is referred to when an enforceable agreement between two parties occurs because of a meeting of the minds. The Paradox in Contract Law: Non Est Factum Today, allowing a plea of non est factum is well-established and in use in several common law countries. ![]() To apply in situations where someone had no idea what they were signing.To apply in situations where people were illiterate during that time in history and were incapable of reading what they were signing.The doctrine is over a century old and was created for several reasons, including: Non est factum is a Latin phrase that means, "It is not his/her deed." It is used in contract law as a special defense allowing an individual to not fulfill the stipulations in a contract they have signed.
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