Mistake

By
Nadeesh de Silva
(Day School 3)

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Objectives

u Identify different types of mistake

u Identify to which term or condition of a contract
a particular mistake affects.
u Distinguish between mistakes which make
contract nullify and voidable.
u Remedies granted under the Roman-Dutch Law
and English Law to the innocent parties.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Introduction
u Where the courts make a finding of mistake - contract void ab initio (from the
beginning).so it is as if the contract never existed.
u This represents an important distinction from voidable contracts.
u Where a contract is voidable, the contract exists and is valid until such time
as the innocent party takes action to set the contract aside.
u where there is a voidable contract a person acquiring goods under a contract
will obtain good title to those goods.
u If a contract is void, no title passes.
u This distinction is most relevant where the goods have been sold on to a third
party. A purchaser of the goods will acquire good title if the original contract
was voidable, but will not obtain title if the contract is void.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
Introduction
u mistakes as a vitiating factor
u Mistakes, preventing the formation of agreements
or nullifying agreements already formed.
u In the case of mistakes preventing agreement,the
error must relate, to a term of the offer itself,
u in the case of mistakes nullifying agreement, the
error must relate to something forming a
condition precedent to the operation of the
contract.
Weeramantry, The Law of Contracts, Vol. 1 p. 268
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
u Unlike English common Law, the Roman-Dutch
Law recognizes a third category of mistake where
the contract is void able at the instance of the
mistake party.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

 Condition Warranty

A warranty is a stipulation
1. A condition is a stipulation which is essential
which is collateral to the main
to the main purpose of the contract.
purpose of the contract.

For the breach of warranty,

2. For the breach of condition, the affected party
the affected party can claim
can abandon the contract of sale.
damages only.

3. A breach of condition may be treated as a A breach of warranty cannot

breach of warranty. This happens if the affected be in any way treated as
party decides to claim damages only. breach of condition.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
Different terminologies of mistake

unilateral
Mistakes mistakes
preventing
agreement mutual
Mistake mistakes

Mistakes
common
nullifying
mistakes
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
agreement
English contract law recognises three types of
mistake:

u Common mistake - Where both parties

make the same mistake
u Mutual mistake - Where the parties are at
cross purposes
u Unilateral mistake - Where only one party
is mistaken

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

1.Unilateral Mistake

u Thisoccurs when,
one of the parties mistaken about some
fundamental fact and,
the other party knows or should know this.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

u Hartog v, Colin and Shields, (1939) 3 All ER 566
Offer - to sell certain Agreement hare skins at a certain price
per pound.
Accepted by the other party
but, the preliminary negotiations, however, had proceeded on
the clear understanding that the skins would be sold at per
piece, not per pound.
also at the trial it was established that there was a trade
custom to fix the price by reference to a piece.
It was held that the buyer must be taken to have known the
mistake made by the sellers in making their offer.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
Webster v. Cecil. (1861) 30 Bea v. 62

u OFFER – SELLING A LAND by Cecil,

u Cecil, refused to sell his land to Webster for £2000.
u But He (Cecil) wrote a letter offering it to him for £1250.
u Webster accepted by return of post
u Cecil immediately gave him notice that he had mistakenly written
£1250 for £2250.
u The court act aside the contract.

u Wessels cites this case for the proposition:

“If the mistake was known to the other party or if a reasonable man
would have detected the mistake, it would be dolus. To insist upon the
contract being carried out with the error”.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
u No difference between English Law and Roman-Dutch law with regard
to the meaning of ‘unilateral contracts’.
u the innocent party is allowed to prove the effect upon his mind of the
error
u only one party is mistaken and the mistake of that party is known or ought
to be known, to the other.
u The party which knows of the mistake in such a case knows also that
there is a complete lack of agreement and, therefore cannot maintain
that there is a contract such as there would have been, if the objective
test has been applied.
u The knowledge of the error is decisive and makes it impossible to apply
the objective test of intention, which is the test applied without either
being aware of any mistake. That type of mistake is termed “mutual”.
Chestire Fifoot and Furmston 12th Edition Pp. 259 –
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
 Mutual Mistake
u Mutual mistake occurs when,
two parties mean different things.
each party mistaken as to the other’s though each
is ignorant that any mistake exists.
u Normally, this will be a mistake as to the identity
of the subject matter of the contract.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

u Raffles v. Wichelhaus .(1864) 2 H & C 906
P agreed to sell to D a consignment of cotton which
was to arrive ‘ex Peerless from Bombay’.
There happened to be two ships called Peerless
sailing from Bombay, one in October and one in
December.
P was thinking of one ship and D of the other.
It was held that the buyer was not liable for refusal
to accept cotton dispatched by the December ship.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

But, if you apply the objective test into
this case,
u from the whole of the evidence, a reasonable man
would infer the existence of a contract in a given
sense. There is a contract
u Cheshire and Fifoot-
in modern times the question would revolve on the fact
whether a reasonable man would seduce an agreement
from the behaviour of the parties though in 1864, it
might well have been though to turn on whether the
parties actually intended the same ship.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

uTo prevent agreement in both
unilateral and mutual mistakes, the
mistake must relate to a term of
the contract.
u Where the error does not relate to a term of the offer, error
has no legal consequence, for it would be an error of motive.
Weeramantry- Law of Contracts vol. I p. 269

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

A mistake relating to a term of the contract
would involve the following:

1. Mistake as to the person (error in persona)

2. Mistake as the nature or quality of the subject matter (error in
material)
3. Mistake as to the nature of the transaction (error in negotio)
4. Mistake as to the quantity of the subject matter (error in
quantitate)
5. Mistake as to the identify of the subject matter(error in corpore)
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
A. Mistake as to the person

uTwo different views under the

Roman-Dutch law and English law.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Position under Roman-Dutch Law

u Differences of opinion prevailed among roman-

Dutch jurists
Savigny –such a mistake prevented agreement.

Pothier - contract void only if the individuality of

such contracting party entered as an element into
the contact.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
Ex –
a person buys a pound of bread from baker A, thinking that
he was buying from baker B, the transaction would not be
affected by a mistake as to the identify of the vendor.
But the position would be different if a person engaged
architect A to draw up plan for house when in fact it was
actually drawn up by architect, B, since the individuality of
the architect was a material fashion (or a term) in entering
into a contact. The contract would be rendered void.

u Weeramantry - pothier’s view would appear to be more in

accordance with Modern Roman-Dutch law than the view
of savigny and has been cited with approval in judicial
decisions’.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Position under English Law
u Pothier’s view regarding a mistake as to person has been cited
with approval in Many English cases.
u but not at all the time,
u why ?? English Law applies an objective test relating to any
question with regard to offer and acceptance, rather than a
subjective one.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Applying the objective test to a mistake
relating to the identity of a person

u The English law makes a distinction with regard to

the identity of a person and attributes of a person.
u if one party is mistaken as to the identity of the
other - A mistake is fundamental and the consent is
negative,
u But, mistake by one party as to an attribute of the
other – parties can not use that mistake to prove that
the consent is negative
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
u King’s Norton Metal Co. Ltd, v. Edridge, Merret Co, Ltd 1879
u the plaintiffs received an order for wire from “Hallam and Co.” which was
described on the letter head as substantial firm having a large factory and depots.
u In fact “Hallam and Co.” consisted solely of an impecunious rogue called Willis.
u The plaintiffs sent the goods to “Hallam and Co.” on credit.
u Willis took possession of the good, sold them to the defendants with out paying
the plaintiffs.
u Since property in the goods passed to Willis, the defendants got good to them and
they were not liable for conversion.
u As Willis and “Hallam and Co,” were one and the some person
the plaintiffs had not made any mistake as to the identity but
only made a mistake relating to credit worthiness of the other
contracting party, whom they identified as the writer of the
letter.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Cundy v. Lindsay, (1878) 3 App. Cas. 459
u the mistake was with regard to the identity of a person.
u plaintiffs received an order for handkerchiefs from a dishonest person called Blenkiron, who gave his
address as 37, wood street, Cheapside. He signed his name in such way to make it look like
“Blenkiron Co,” a respectable firm known to the plaintiffs carrying on business at 123, Wood Street.
u The plaintiffs dispatched the goods to Blenkiron thinking that they were sending them to Blenkiron
and Co.
u Blenkiron took possession of the goods and without paying for them sold them to an innocent third
person, who was later sued by plaintiffs for the recovery of the goods.

u It was held that there was no contract between the plaintiffs

and Blenkiron as the plaintiffs did not intend to deal with him
but with someone else. Thus no property in the goods passed to
Blenkiron and therefore Blenkiron could not have passed any
title in the goods to the defendant.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
Mistake Inter Presents

u Difficulties arise when distinguishing between attributes

and identity in contract made inter presented.
u With is where offer and acceptance are made by the
parties in each other’s presence.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Phillips v. Brooks,(1919)2 KB 243
1. The plaintiff either intended to sell the ring to the person
present in the shop, whoever he was, or
2. he intended to sell to Bullough and to nobody else?
If the first solution was correct, then a contract of sale had
been concluded, though one that was void able for the fraudulent
representation of North that the means of payment would be furnished by
bullough, being void able ie, valid until disaffirmed, a good title to the ring
would be acquired by the defendant.
If, however, the second solution was correct, then the
plaintiff’s mistake prevented a contract from arising. Not
even no right of property whatsoever.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
Lewis v. Averay 1972
u Followed the same position like phillips case.
u where the plaintiff had advertised his car for sale and a rogue who
came to purchase it, falsely claimed himself to be a well known
actor called Richard Greens.
u This false pretence led the plaintiff to sell the car to him in credit
and allow the rogue to take delivery of the car on acceptance of a
cheque which was dishonored.
u The plaintiff claimed the car from the defendant, who had bought
it is good faith from the rogue;
u but the claim failed as the contract berween the defendant and
the rogue was not void for mistake. The presumption that the
plaintiff intended to contract with the person physically before
him has not been over come, his mistake being not one of identify
but merely the credit worthiness of the other party.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
No absolute rule that there cannot be an operative
mistake as to identity when the parties contract in each
other’s presence.
u EXAMPLES -
1. A pretending to the C’s agent induces B to enter into a contract with him, although intending at
all times to contract on his own (A’s) behalf. Here it could be said that there was no mistake
relating to the identity of A but rather the mistake concerned the capacity in which he
purported to contract.
2. a mistake relating to a person who was present could be one of identity where that person had
adopted a physical disguise. For instance if A induced B to deal with him disguising himself as C,
and C was personally known to B, so that thought that A was C.
3. there could be other exceptional circumstances in which a mistake about a person present at
the time of the alleged contract can be one as to his identity.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Ingram v. Little. 1961
u the plaintiffs advertised their car for sale and a rogue who claimed to be
P.G.M. Hutchinson of a particular address visited the plaintiffs and offered to
buy the car on credit.
u The plaintiffs agreed to sell the car on credit only after one of the plaintiffs
checked his name and address in the telephone directory and was satisfied
that there was such a person living at that address.
u Since the rogue’s cheque was dishonored a the plaintiffs claimed the car from
the defendant’s who had brought it from the rogue.
u This claim of the plaintiffs succeeded in the Court of Appeal as the
plaintiffs intended to deal with P.G.M.
Hutchinson of that particular address and
not with the person before them .

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

B.Mistake as to the nature or quality of the
subject matter

u The nature or quality of the subject would not

necessarily constitute a term of any contract.
u If the thing delivered approximates fairly to the
description of the goods sold the sale will be valid
unless the quality of the article constitutes a term of
the offer.
u Such a position would prevail where the difference in
quality is such as to make the thing delivered an
article different in kind from the one contracted for.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
C. Mistake as to the nature of the transaction

u Nature of the transaction usually constitute a term of

the contract.
u Error relating to the nature of the transaction in most
instances would prevent the formation of
agreement
EX –
Ø A hands over a certain items for bailment to B but B thinks that it is a gift, the
error in this instance relates to a term.
Ø A signs a document thinking that it was a sale agreement but which in fact was
document relating to the execution of a Mortgage, the mistake would relate to a
term.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

D. Mistake as to the quantity of the subject matter

u A mistake relating to the quantity of the subject

matter would prevent agreement as it is generally a

term of the contract.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

E. Mistake as to the identity of the subject matter

u Since the subject matter of a contract would obviously

be a term of it, mistake with regard to identity would
prevent agreement.
u For example, if A intends to buy X but B intends to sell
Y. the position would be the same if A intends to buy Y
only but B intends to sell both X and Y or as in Reffles
v. Wichelous (1864) 2 H & C 906 if both ships had the
same name and A contracted with reference to one
and B with reference to the other.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
 4.2
Mistakes nullifying agreement
Common Mistake

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Common Mistake- Position under English Law
u When a common mistake occurs, it nullifies an agreement.
u Usually this type of mistake entertained by both parties relates to a
fundamental fact such as the existence of the subject matter of the contract.
u In this situation each person would knew what the other’s intention is, but
each would be mistaken about the same under lying and fundamental fact.
u For example in Galloway v. Galloway , a man and a women made a
separation agreement, believing that they were married. In fact, they were
not married because; unknown to them, at the time of their marriage
ceremony the man’s wife was still alive. The separation agreement was held
to be void for mistake because the marriage which was the basis for the
agreement was void.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
u Common mistakes exist where both parties
to the contract make the same mistake.
u Three categories have emerged as giving rise to a cause of action:

u Res extincta - the subject matter of the contract

no longer exists
u Res sua - where the goods already belong to the
purchaser
u Mistake as to quality - only available in very
narrow limits

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Res extincta
u Res extincta will apply where both parties enter a contract
with the belief that the subject matter exists when in fact it
does not exist. The contract will be held to be void for
mistake:

u Scott v Coulson [1903] 2 Ch 439

At the time of entering a contract for life insurance both

parties believed the person whose life was to be insured was
living. When in fact he was dead.

The contract was void for mistake as it was a common mistake

as to the existence of the subject matter (Res extincta)
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
Couturier v Hastie (1856) 5 HLC 673
A cargo of corn was in transit being shipped from the Mediterranean to
England.
The owner of the cargo sold the corn to a buyer in London.
The cargo had however, perished and been disposed of before the contract
was made.
The seller sought to enforce payment for the goods on the grounds that the
purchaser had attained title to the goods.

The court held that the contract was void because the subject matter of the
contract did not exist at the time the contract was made.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Res sua

u This applies where a party contracts to buy

something which in fact belongs to him.
u This will generally render the contract void.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Mistake as to quality

uA mistake as to quality is only capable of

rendering a contract void where the
mistake is as to the existence of some
quality which renders the subject matter of
the contract essentially different to that
what it was believed to be:

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

Bell v Lever bros [1932] AC 161 House of Lords
u Lever bros appointed Mr Bell and Mr Snelling (the two defendants) as Chairman and Vice Chairman
to run a subsidiary company called Niger.
u Under the contract of employment the appointments were to run 5 years. However, due to poor
performance of the Niger company, Lever bros decided to merge Niger with another subsidiary and
make the defendants redundant.
u Lever bros drew up a contract providing for substantial payments to each if they agreed to
terminate their employment. The defendants accepted the offer and received the payments.
u However, it later findout that the two defendants had committed serious breaches of duty which
would have entitled Lever bros to end their employment without notice and without compensation.
Lever bros brought an action based on mistake in that they entered the agreement thinking they
were under a legal obligation to pay compensation.

The House of Lords held that this was only a mistake as to quality and did not render the contract
essentially different from that which it was believed to be. The action therefore failed.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

A controversy exists in English law with regard to the
exact scope of the doctrine of common mistake.

u Is it confined only to cases of res extinct a and res sua?

u When considering res extinct a : a mistake as to existence does not always
amount to an operative mistake and consequently it does not always amount
to an operative mistake and consequently it dose not always excuse the
parties . This is became the contact may: by its termlay the responsibility for
non existence on one party or the other .

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

4.2.2 Position under Roman-Dutch
Law
u In the Roman-Dutch law, the controversy that prevails in English
law is non-existent as the doctrine of common mistake has
within its scope not only cases of res extincta and res sua but
also any mistakes relating to a condition precedent of contract.
u In the South African case of Dickinson Motors (Ptv.) Ltd. v.
Oberholzer, the matter in issue was a claim to recover an
amount of money paid under a common mistake. Here it was
held that the mistake was vital to the transaction and vitiated
the contract.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
u In Dutch Reformed Church Council v. Crocker
another South African case, the property and articles
were sold subject to the condition that they be used
as a funeral parlour by the purchaser. Unknown to
the seller and the purchaser the property could not
be so used because the area was classified as
residential and the contract was vitiated.
u Steyn J. held,…. Here a party has been misled by a
statement which induced the contract, even though
honesty made, he can always repudiate the contract
provided he can prove that it went to the root there
of and that, but for the representation, he would not
have contracted.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
u When analyzing the position of common
mistake in English law and Roman-Dutch law, it
is clear that the uncertainties encountered in
English law relating to the application of the
doctrine of common mistake are not prevalent
in Roman Dutch law.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

4.2.3 Mistakes rendering contracts voidable
u This category is peculiar to the Roman-Dutch law
u unknown to the English Common law.
u In the Roman-Dutch law, even if a valid objective
contract has been formed an error which is essential
and reasonable could make a contract voidable, by
the grant of the remedy of restitution in integrum.
u Court’s intervention in such a case would be
motivated by the reason that it would be inequitable
to permit one party to take advantage of the other’s
error.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
A. Justus or reasonable error

u An error in this instance would not be

justus, if it is due to negligence or supine
ignorance.
u In the same way, if the error is made
regarding a matter which is one of common
knowledge, such error being not Justus, a
mistaken party would not be able to avail
himself of such a mistake.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
u As Sansoni J. stated in Perera v. Perera the test of reasonableness is
satisfied if the mistaken party shows either,
(1) that the error was induced by the fraudulent or innocent
misrepresentation of the other party, or
(2) that the other party knew, or a reasonable person should have known,
that a mistake was being made, or
(3) that the mistake was in all the circumstances, excusable (Justus et
Probabilis error) even in the absence of the circumstances discussed in (1)
and (2) above.

u Thus the concept of justus error gives a court administering Roman-Dutch

law a wide discretion to decide whether to grant or withhold relief in
cases where mistake is urged as a ground for relief against the
consequences of an objectively valid contract.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
 (b) Essential Error
u The Roman-Dutch law in general will not grant relief from the
effects of an objective contract, unless the error is contractual that
is an error relating to a term of the offer, A party contracting under
a non-contractual or a incidental error will not be entitled to such
relief.
u In Perera v. Perera Sonsoni J explains essential error in the following
terms.
u “It must be essential in the sense that there was a mistake as to the
person with whom he was dealing (error in persona) or as to the
nature or the identity of the subject matter of the transaction
(error in negotio, error in copore) A mistake in regard to incidental
matter is not enough”.
@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL
 Thank you

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

4.2.4 Documents mistakenly signed and the
plea of non-est Factum
u A person signing a document is expected to know the legal consequences of his deed and
therefore cannot rely on the claim that he signed under a mistake.
u Therefore, a person who is neither illiterate nor blind signs a deed without examining its
contents would not be permitted in Roman-Dutch law as a general rule, to set up the
plea that the document he signed was not his. -Wessels, s. 964
u However, English common law recognized a plea called the plea of non eat factum which
made its first appearance all the end of the sixteenth century. This plea, being peculiar
to signed documents, the law relating to it is quite separate from the general law of
misrepresentation and mistake.
u This plea available under English common law has found its way into the modern Roman-
Dutch law. The earliest English case on this subject was the Thorough good’s case. Here
an illiterate man executed a deed which was described to him as a release of arrears of
rent, when in fact it was a release of all claims. The deed was not read to him but when
told that it related to arrears of rent, he said, “if it be no otherwise I am content”. His
deed was held void, the plea of non est factum being upheld.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

u At this stage, in its development, the plea was very wide and the Courts’ attitude was to bring it with in
more reasonable limits. It became established law then that the plea was not available to a signer who
was mistaken merely as to the contents of the document, not as to its character or class. It was also
established that the plea was not available to a signer who was negligent in signing.
u However in Carlisle and Cumberland Banking Co. v. Bragg, this clear point about negligence became
confused as Vaugham Williams L.J. in the Court of Appeal said that negligence defeated the plea of non
est factum only if the document in question was a negotiable instrument.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

u This was the state of the law that prevailed until the House Lords gave its judgment in the
case of Saunders v. Anglia Building Society (Also called Gallie v. Lee in the Court of Appeal
before the death of the plaintiff in the case who was substituted by another in the House of
Lords). In this case the original plaintiff (a Mrs. Gallie who died before 1970) wanted to help
her nepnew, Parkin to raise money on the security of her leasehold house, provided she could
continue to live there rent free for the rest of her life. Parking did not want to raise the loan
or become owner of the house himself as he feared this would enable his wife from whom he
was separated to enforce a claim for maintenance against him. He therefore arranged that
his friend, Lee, should raise the money on a Mortgage of Gallie’s House, and then give the
money to him. Before Lee could Mortgage the house, it had to be transferred to him. An
assignment was prepared under which the lease of the house was transferred to Lee for
3,000 when Gallie was asked to sign the assignment, she did not read it because her reading
glasses were broken. But Lee told her that it was a deed of gift to Parkin, who witnessed the
document. Lee then raised the money by Mortgaging the property to the Anglia Building
Society, but he did not pay any money to Parkin, nor did he pay the 3,000 to Gallie. It was
held that the plea of non est factum did not apply as the widow’s mistake was not sufficiently
serious. She believed that the document would enable her nephew to raise money on the
security of the house, and the document was in fact designed to achieve this aim, though by
a different process from that contemplated by her.

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

 The views of the House of Lords can be
summarized in three ways.

u The plea of non est factum can only succeed where the person who signed the
document can show that there was a radical difference between what he
signed and what he thought he was signing, and this test should replace the
former distinction between the contents of a document and its character or
class.

u The plea is not open to a signer who was careless in signing. The word
“careless” is preferable to the word “negligent” because “negligent” has
come to have a technical meaning. (involving the breach of a duty of care)
which is not appropriate in this context.
u Carlisle and Cumberland Banking Co. v. Bragg case was over ruled

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL

u For the same reason, it was held in United Dominion’s Trust Ltd. v. Western
1976 that a person cannot rely on this doctrine if he signs a document
containing blanks which are later filled in otherwise than in accordance with
his instructions.
u It is relevant at this stage to consider the Sri Lankan case of Peiris v. Dole
where it was held that in order to plead the defence of non est bactum
successfully, the person signing must be misled as to the nature and the
character of the deed and that, if he is an educated pers

@Nadeesh R. de Silva, Lecturer- Department of Legal Studies, OUSL