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Criteria
Non est factum is a legal defence for an individual who signs a document under the undue influence of another person, where the contents of the document are materially different from what the individual meant to sign. The requirements for the defence come from the case of "Saunders v. Anglia Building Society" where the decision of the court formed the criteria for the defence. The criteria for the defence is as follows:


 * The person who intends to rely on the defence must be part of a class of persons who, unintentionally, cannot understand the purpose of a particular document, because they are blind, illiterate or have some other kind of disability.


 * The signee of the document must have made a basic mistake as to the facts and contents of the document, extending to the practical effect of the document. Also, the document must be completely different from the one the signee meant to sign.

These principles of Saunders were applied in Petelin v Cullen where the High Court stated that the person who intends to use the defence must have been under the impression that the document was materially different from what it was supposed to be. The Courts have now adopted this scope of defence, but have indicated the situations where persons can rely on the defence. The persons that can rely on the defence have to fall under a class where they are blind, illiterate, or have some other kind of disability.

Application in Guarantee Cases
As a way to ensure the defence of non est factum is not used too loosely, the onus falls on the defendant to prove the requirements that must be met by the class of persons. For example, in Avon Finance Co Ltd v Bridger the majority of the English court refused to uphold a transaction due to undue pressure and impaired bargaining power where no independent advice was sought. In the case, a son, who is a chartered accounted coerced his parents into getting a second mortgage on their home in order to secure a loan. The son did not keep up with his payments and went into arrears, the loan company brought an action against his parents to repossess the home. The defendants, relied on the defence of non est factum as they were under the impression that the document they signed was for a second mortgage on their home. The Court of Appeal dismissed the appeal based on the fact that the transaction was unfair, stating that there was a lack of independent legal advice based on the terms of the contract, as a result of the unequal bargaining power and undue pressure.

The defence of non est factum is limited and has been made available to a person who signs a documents, where the content of the document is misrepresented without the persons knowledge. The document has to be materially differently from what the signer thought her or she was signing and the mistake was not made out of negligence. For those who rely and depend on the documents they sign, this limitation has added further protection for their interest.

Original Article Non est factum