2. The need to understand signed documents
The plea of non est factum
Every day in our courts and tribunals, we are called upon to base our
decisions and judgment on documents signed by parties to an action.
Was the lease signed knowingly by the tenant? Was this written
statement understood by the witness? Was this affidavit read over and understood
by a party to a hearing? Generally, we presume literacy and
hold people accountable to documents they sign. The plea of non est
factum, originating in Thoroughgood’s Case (1582) 76 E.R. 408, was
designed to protect “illiterate persons” who had been rushed into
signing a contract of a different nature than what was represented to
them. The following section reviews the non est factum plea and what
has to be considered when assessing the liability of people who do not
have the literacy skills necessary to formulate legally binding
obligations.41
- In Foster v. Mackinnon (1869), L.R. 4 C.P. 704, Byles J.
said: “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 contact 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 (p. 711).
- The plea of non est factum went through significant change and
modification. It was eventually returned to its original position in the decision
of the English Court of Appeal in Saunders v. Anglia Building
Society [1971] A.C. 1039. Lord Pearson wrote at p.1050: “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 illi-teracy) is not capable of both reading and sufficiently
understanding the deed or other document to be signed.”
- The leading Canadian decision on the principle of non est factum
is Marvco Color Research Ltd. v. Harris, [1982] 2 S.C.R. 774.
In Marvco, the Court excluded the defence of non est factum
as against an innocent third party because of careless conduct on the part
of the signer who, as the result of the fraud of another, executed a mortgage
without reading it. However, Mr. Justice Estey, speaking for a unanimous court,
added this caveat (p. 587): “I wish only to add that the application
of the principle that carelessness will disentitle a party to the document
of the right to disown the document in law must depend upon the circumstances
of each case.”
41. The following section on the plea of non est factum does not intend to
be a summary
of the law in this area of contract law. It is intended to provide some examples
of decisions where the plea of non est factum is discussed in the context of
the literacy skills of the signer to an agreement.