Non Est Factum

Non Est Factum

Literal Meaning

It is not his deed.


Is a defense in contract law that allows a signing party to escape performance of an agreement “which is fundamentally different from what he or she intended to execute or sign A claim of non est factum means that the signature on the contract was signed by mistake, without knowledge of its meaning. A successful plea would make the contract void ab initio.


According to Saunders v Anglia Building Society [1971] applied in Petelin v Cullen [1975], the strict requirements necessary for a successful plea can are generally that:

The person pleading non est factum must belong to “class of persons, who through no fault of their own, are unable to have any understanding of the purpose of the particular document because of blindness, illiteracy or some other disability.” The disability must be one requiring the reliance on others for advice as to what they are signing.

The “signatory must have made a fundamental mistake as to the nature of the contents of the document being signed,” including its practical effects.

The document must have been radically different from one intended to be signed.

Non est factum is difficult to claim as it does not allow for negligence on the part of the signatory, i.e. failure to read a contract before signing it, or carelessness,:para 12 will not allow for non est factum. Furthermore, the Court has noted that there is a heavy onus that must be discharged to establish this defence as it as an “exceptional defence.


A father acted as a guarantor to his son’s debt when purchasing a farm. The father was illiterate and signed the bank document under the belief that he was acting as the guarantor for the farm only, when the contract was actually for all the debt accumulated by the son. As he was illiterate, this was a mistake as to the document signed and the father was successful in claiming non est factum.

Cases Refered

Petelin v Cullen (1975),[2] the defendant, Petelin, was illiterate and could speak very little English, but still signed a document he believed to be a receipt for $50 but actually gave Cullen the option to purchase Petelin’s land, which he exercised. Petelin refused to sign the contract for sale, alleging he had been deceived, and Cullen sought specific performance. The court found that because of Petelin’s mistaken belief which was not because of his carelessness, his claim of non est factum was successful. The court noted that even if he had been careless, “Cullen was not an ‘innocent person without knowledge or reason to doubt the validity of the appellant’s signature.

Edited by Vigneshwar Ramasubramania

Approved & Published – Sakshi Raje