Common Mistake

Both parties make the same mistake which is so fundamental that it nullifies the agreement.
Classical examples of this are res extinct cases. (Note: Be careful as some judgements have used
the term mutual mistake to refer to situations which are essentially cases of common mistakes.)

 Courtier v Hastie (1856) 5 H L Cas 673

Facts: The plaintiffs were certain merchants who brought an action against the defendant for
corn sold on their behalf. A contract for the sale of corn was entered, but unknown to the parties,
the corn became fermented and the master of the ship sold the corn. The plaintiffs claimed that
the defendants were liable to pay for the corn even though they did not receive it as the parties
had entered an agreement, through the shipping documents, that the defendant would be liable

Principle: Where goods cease to exist at the time of a contract which presumes their existence
the contract is void.

Held: The claim must be denied. There was nothing to buy at the time that the contract was
entered. (See as Per Lord Cranworth in Simplifying Contract Law by Lana Ashley on page 565.

Note that cases of res sua may be considered as being similar to res extincta cases: - Cooper v
Phibbs (1867) L R 2 HL 149.

Facts: Certain lands were sold and conveyed to Joshua Cooper before he died. On his death, his
nephew, Edward Cooper succeeded to the property. Believing that, on death of Joshua Cooper,
the property descended to his family, the appellant took a lease for three years. He later
discovered that by virtue of a settlement agreement, the late Joshua Cooper was only a tenant for
life and that he, the appellant, has in interest in the said property. He brought an action in equity
to set aside the agreement.

Principle: Where there is a mistake as to the ownership of the property, the contract was void.

Held: The agreement was set aside by the House of Lords; however, they granted a lien to the
defendant which permitted him to receive such money from the fishery as he had expended on it.

(See notes below case in Simplifying Contract Law by Lana Ashley on pages 567-568)

McRae v Commonwealth Disposals Commission (1951) 84 C L R 377

From Lexis:

Facts: Defendants invited tenders for an oil tanker lying on a particular reef. Plaintiff’s tender
was accepted. The contract was confirmed by a sales advice note, which stated, inter alia, that no
warranty was given as to ‘condition, description, quality or otherwise.’ The plaintiff equipped a
salvage expedition, but found that there was no tanker on the reef.

Held: Defendants had contract that there was a tanker on that reef. They could not rely on
mistake to escape liability because it was caused by their own fault. The exemption clause did
not apply because it was a condition of the contract that a tanker should be supplied. That is to
say that the contract GUARANTEED a tanker.

From Notes:

Claimant succeeded on tender to purchase oil tanker which was said to be on a certain reef.
Turns out that there is no such tanker on the reef and in fact no reef by the name supplied by the
defendant.
Note: The subject matter did not exist at all.

However, when there is a warrant and a guarantee that the matter is existing the mistake
cannot operate and there is no room for the res extincta principle. “The only proper
construction of the contract is that it included a promise by the commission that there was a
tanker in the position specified”

 Sheik Bros v Ochsner [1957] A C 136

Facts: By license agreement the appellant company granted to the first respondent license and
authority - later assigned to the second appellant to cut, decorate, process and manufacture all
sisal then or any time thereafter growing on certain lands which the appellant was the levee. The
licensee carried on cutting and manufacture until January 31, 1952 when the appellant at the
request of the second respondent resumed possession without prejudice to the rights and
remedies of the appellant under the license agreement. The issue was whether the agreement
was void by reason of mutual mistake as both parties believed that the leaf potential of the sisal
area would be sufficient to permit the manufacture and delivery of the stipulated minimum
quantities throughout the term of the licnense.

Principle: A mistake as to quality I never operative

Held: Lord Cohen “It was the very basis of the contract that the sisal areas should be capable of
producing an average of 50 tons a month throughout the term of the license. It follows that the
mistake was as to a matter of fact essential to the agreement.” Accordingly, the company was not
entitled to compensation. [Here, the court does not consider this test of sufficient fundamentality
as applicable]
(See as Per Lord Cohen in Simplifying Contract Law by Lana Ashley on pages 376 and 377)

 Bell v Lever Bros Ltd [1932] A C 161

Facts: Bell and S were employed by Niger Company as chairman and vice chairman
respectively. Bell and S entered into their own account into secret speculations in cocoa which
would have justified their dismissal without compensation. When Niger Company was
amalgamated with another company, the services of Bell and S were no longer required and they
were made redundant. With Bell and S breaches unknown, Lever Bros Company agreed sums as
compensation for terminating the services of Bell and S. If Lever Bros Company had known of
the breaches, Bell and S would have been terminated without compensation. Lever Bros
Company brought claim against Bell and S on the ground of fraudulent misrepresentation and
alternatively on the ground of unilateral mistake induced by fraud.

Principle: A mistake as to quality made by both parties will not generally be sufficiently
fundamental to render the contract void at common law since such a mistake does not render
performance, as originally agreed, impossible.

Held: There was no unilateral mistake and the contract could not be rescinded as it was not void
on mistake. Compensation remained payable because the mistake related merely to the quality of
service contracts which would have determined the relevant compensation payable.

Recall that the fourth notable point of this decision as identified above is that the absence
of clarity in this decision of the House of Lords raises two possible interpretations:
1. A mistake as to quality can be operative if the mistake as to the quality is
sufficiently fundamental (and it was not sufficiently fundamental on the facts of the
case)
2. A mistake as to quality is never operative (the standard is so high so it does not
exist).

 Associated Japanese Bank(International) Ltd v Credit du nord [1989] 1 W L R 255

Facts: Mr. Bennett sold four machines to the plaintiffs and the plaintiffs then leased the said
machines to Mr. Bennett (now the lessee of the machines). The plaintiffs had been unwilling to
enter into the transaction unless the lessee’s obligations were guaranteed. The defendants
guaranteed the obligations of the lessee under the lease agreement. After paying one installment
of rent under the lease Mr. Bennett defaulted on subsequent payments and was eventually
adjudged bankrupt. It was later discovered that the machines, which were the subject of the
matter of the sale and lease, did not exist. The plaintiffs sued the defendants on the guarantee.
Principle: In order for a common mistake to attract legal consequences the question to be
answered is whether the subject matter of the contract was essentially different from what it was
reasonably believed to be. ( A return to the reasoning in Bell)

Held: This case appears to be decided on the ground of res extincta as the machines did not
exist. On that basis, the guarantee contract was void ab initio for common mistake at common
law. However, Mr. Justice Steyn noted that if his construction of the agreement as one of res
extincta was incorrect and the case was one of quality of the subject matter, the dictum of Lord
Atkin in Bell would apply. The fact that the machines did not exist was of fundamental
importance to the guarantee contract making the subject matter essentially different from that
which both parties reasonably believed it to be.

(See as Per Steyn J in Simplifying Contract Law by Lana Ashley Pages 581-582)

Is Bell v Lever Bros reconcilable with Associated Japanese Bank?

Yes it is.

HOW THOUGH?
Steyn J in AJB referred to Lord Atkin’s dicta to say that the guarantee contract would
have been capable of performance had the case been one of mistake as to the quality of the
contract. Mistakes as to the quality of the contract as in Lever Brothers generally don’t
operate so as to vitiate the contract as they are not fundamental enough.

However, common mistakes specifically res extincta case was fundamental to both
contracts rendering it void.

Great Peace Shipping v Tsavliris Salvage Ltd [2002] 4 All E R 689

Facts: The appellants sought the assistance of the respondents concerning the tug of a damaged
vessel at sea. Both parties believed the respondents’ vessel to be about 35 miles from the
damaged vessel. Negotiations between the appellants and the respondents resulted in a hire
contract. The agreement contained a cancellation clause giving a right to cancel on payment of
five days’ hire. When it was discovered that the vessels were in fact 410 miles apart, and not 35
miles as previously understood, the appellants cancelled the contract with the respondents and
refused to make any payment for the hire of their vessel after they found a vessel closer to the
damaged vessel to assist.

Principle: The court has no equitable jurisdiction to grant recession of a contract on the ground
of common mistake where that contract is valid and enforceable on ordinary principles of
contract law.
Held: Appeal Dismissed. The common mistake of the distance between the two vessels did not
have the effect of making the contract essentially different from that which the parties had
agreed. The appellants were liable to pay the cancellation fee.

(See Per Lord Phillips MR in Simplifying Contract Law by Lana Ashley pages 582-583, Also
see pages 583-585 for comparison between Great Peace, Cooper, Bell, Couturier, McRae, Salle
and Associated Japanese Bank)

Per Lord Phillips M.R. “…..the following elements must be present if common mistake is to
void a contract:
1. There must be a common assumption as to the existence of a state of affairs;
2. There must be no warranty by either party that that state of affairs exists;
3. The non-existence of the state of affairs must not be attributable to the fault of
either party;
4. The non-existence of the state of affairs must render the performance of the
contract impossible;
5. The state of affairs may be the existence, or a vital attribute, of the consideration
to be provided or circumstances which must subsist if performance of the contractual
adventure is to be possible.”

Apply the facts to the case of Associated Japanese Bank. What outcome did your
application yield?(ANSWER THE QUESTION look to page 585)

Graves v Graves [2007] EWCA Civ 660

Facts: The appellant (“the landlord”) and the respondent (“tenant”) were formerly married to
each other. The landlord agreed to the tenant living in a property he owned in Fleet. The tenant
was informed by the local authority (“the council”) that it would pay housing benefit which
would cover 90 per cent of rent and, on that basis, m the parties entered into a tenancy agreement
for a term of 12 mounts. The tenant went into occupation and paid the landlord a deposit and the
first month’s rent. The advice given by the council was wrong; the tenant was not entitled to the
housing benefit. The council refused to pay housing benefit on the ground that the landlord was
the father of one of the tenant’s children. The tenant was therefore unable to pay the rent due,
unable to afford to move and liable to be rehoused by the council in unsuitable bed and breakfast
accommodation if she left voluntarily. She offered to vacate on repayment of the balance of
£6,250 from her deposit but the landlord declined. Instead, the landlord used her deposit to cover
the rent until January 2006 when he commenced proceedings for possession. The trial judge held
that the tenancy agreement was void for mistake or alternatively it had been frustrated.
Principle: A condition may be implied into a tenancy agreement. That same should come to an
end where it is clear that the basis for the agreement is one that does not in fact exist thereby
making the agreement different in kind to that originally contemplated.

Held: Appeal allowed. A condition should be implied into the agreement that if the housing
benefit was not payable, the tenancy would come to an end. Thus, when the Council stated that
the housing benefit would not be paid, the tenancy determined. It was not necessary to consider
whether the contract was frustrated or void for mistake. Though the court was not required to
determine the issue of mistake, it noted, in obiter dictum, that the test in cases of mistake is that
the thing is essentially different.

(See as Per Thomas LJ in Simplifying Contract Law by Lana Ashley Page 589)

 Kyle Bay v Underwriters Subscribing [2007] EWCA Civ 57

Facts: The claimant operated a night club. Its broker, T, had requested business interruption
cover from the defendant’s agent, SK, on a non-average declaration-linked basis. SK did not
intend the resulting policy to be written on such a basis, but it was in fact so written. A serious
fire occurred at the club, and the claimant raised a claim for, inter alia, business interruption. The
defendant and the claimant appointed loss adjusters and the claim was settled on the erroneous
basis that the policy was not declaration-linked, but was on the gross profits basis and was
accordingly subject to average.
The judge rejected the contention that the claimant should not be bound by the settlement or
should be allowed to re-open it.

Held: Dismissing the appeal. In order to vitiate a contract the mistake had to render the subject
matter of the contract essentially and radically different from the subject matter which the parties
believed to exist. Applying that approach, the mistake in this case did not render what the parties
believed to be the subject matter of the settlement agreement essentially and radically
different from what it actually was. The mistake about the nature of the cover was significant,
but it was not an essential and radical difference.

Mistake in equity?
The notion of an equitable doctrine of mistake took root in Solle v Butcher [1949] 2 All E R
1007. BUT the concept of mistake in equity is now dubious having regard to the judgement
in Great Peace Shipping (supra) which has discredited the doctrine.

Is there a separate and distinct test which gives rise to an equitable jurisdiction to rescind
contracts which are not void at law?

Solle v Butcher [1949] 2 All E R 1007

Facts: A dwelling house was converted into five flats and Flat No. 1 was subsequently let to a
tenant for three years at an annual standard rent. The appellant then took a long lease of the
building, which contained five flats, with the intention of repairing the damage caused by a land
mine and carrying out substantial alterations to the flats.

The respondent and the appellant had conversations about the rents to be charged for the flats
after the works had been completed. Both parties were satisfied the the previous standard rent of
140l. per annum did not apply as the standard rent for one flat after the repairs and alterations
were completed. The. Respondent informed the defendant that he could charge 250l. per annum
as standard rent for Flat No. 1 and that that rent was unaffected by any previous rent by virtue of
the Rent Restriction Acts. Flat No. 1 was let by the appellant to the respondent for a term of
seven years at an annum rent of 250l. Once this lease was executed, no notice of intention to
increase the rent could be given under the Rent Restriction Acts during the contractual tenancy.

The respondent sued the appellant alleging that the standard rent of Flat No. 1 was 140l. and
claiming recover of the amount of rent, which he had overpaid.

Principle: A lease may be set aside, according to principles of equity, where it involves a
common fundamental mistake.

Held: The lease must be set-aside in equity on the ground that the mistake was a common
mistake to fact. To achieve fairness, the tenant had a choice between surrendering the lease or
staying in possession and paying the higher rent.

(See as Per Denning L.J. in Simplifying Contract Law by Lana Ashley pages 577-578)

NOTE: It is important to note that Solle (a Court of Appeal decision) could not overrule
the House of Lords decision in Bell. To avoid the outcome in Bell, Denning LJ was forced to
affirm Bell but interpret the decision broadly. Why is Solle’s interpretation
of Bell completely misguided? As the contract remains valid/enforceable at common law as
the court did not regard the mistake to be sufficiently fundamental, the House of Lords
would have been free to pursue a remedy in equity (if it were possible). NOTE THAT THE
DECISION IN SOLLE WAS DISAPPROVED IN THE COURT OF APPEAL’S
DECISION IN GREAT PEACE.

Mutual Mistake
Both parties are at cross-purposes - thinking different things. Thus consent is negatived and,
technically, no contract comes into existence.

 Raffles v Wichelhaus (The Peerless) 159 E R 375

Facts: A contract was entered into which the plaintiff agreed to sell 125 bales of Surat cotton to
the defendant at 17 ¼d per pound. It was expected to arrive in Liverpool on a ship “Peerless”
from Bombay. It so happened that there were too ships named “Peerless”; one arriving in
October and another in December.

When the December “Peerless” arrived, the plaintiff tried to sell it to the defendant but the
defendant would not accept it. He alleged that the contract was for the October ship. However,
the plaintiff suggested that the ship was immaterial to the contract and the only reason the ship
was named was that if the ship had sunk en route, the contract would be void.

Principle: In seeking to determine the existence of an agreement, the courts will strive to find a
reasonable interpretation in order to preserve the parties agreement.

Held: Judgement for the defendants. Even, on a reasonable interpretation, the court could not
determine which ship named Peerless was intended in the contract. As there was no consensus ad
idem (meeting of the minds), the two parties did not agree to the same thing and there was no
binding contract.

 Scriven Bros v Hindley [1913] 3 K B 564

Facts: There was an auction to bid for a number of bales of hemp and of tow. They were
described in a catalogue. Before the sale, samples of the hemp and tow were on view and the
defendants’ manager examined the hip but not the tow, as he was not intending to bid for tow.
The defendant’s buyer made a bid that was an extravagant price for tow. The plaintiff brought an
action against the defendant when he refused to pay because of mistake.

Principle: The courts do not solely focus on whether it is unjust and oppressive to bind the part
to the contract but more importantly whether there is consensus ad idem between the parties.

Held: There was no consensus ad idem as to the subject matter of the proposed sale; therefore,
no contract for sale was established.

(See as Per Lawrence J in Simplifying Contract Law by Lana Ashley page 100)

 Smith v Hughes (1870) L R 6 Q B 597

Facts: The plaintiff offered to sell to the defendant oats, and exhibited a sample; the defendant
took the sample, and on the following day wrote to say that he would take the oats at the 34s. per
quarter. The defendant afterwards refused to accept the oats on the ground that they were new,
and he thought he was buying old oats; nothing, however, was said at the time the sample was
shown as to their being old; but the price was very high for new oats. The judge left to the jury
the question whether the plaintiff had believed the defendant to believe, or to be under the
impression, that he was contracting for old oats, and, if they were of opinion that the plaintiff had
so believed, he directed them to find for the defendant. The jury having found for the defendant.

Held: There must be a new trial:

Per Cockburn, C. J., on the ground that the passive acquiescence of the seller in the self-
deception of the buyer did not entitle the latter to avoid the contract

Per Blackburn, J., on the ground that there is no legal obligation in a vendor to inform a
purchaser that the latter is under a mistake not induced by the act of the vendor; and that the
direction did not bring to the minds of the jury the distinction between agreeing to take the oats
under the belief that they were old, and agreeing to take the oats under the belief that the plaintiff
contracted that they were old.

Per Hannen, J., on the ground that the direction did not sufficiently explain to the jury that, in
order to relieve the defendant from liability, it was necessary that they should find, not merely
that the plaintiff believed the defendant to believe that he was buying old oats, but that the
plaintiff believed the defendant to believe that he, the plaintiff, was contracting to sell old oats.

Unilateral Mistake
Cundy v Lindsey (1878) 3 App Cas 459

A rogue, Blenkarn, hired a room at 37 Wood street, Cheapside. This was in the same street that a
highly reputable firm called Blenkiron & Son traded. The rogue ordered a quantity of
handkerchiefs from claimant disguising the signature to appear as Blenkiron. The goods were
dispatched to Blenkiron & co 37, Wood street but payment failed. Blenkarn sold a quantity the
handkerchiefs on to the defendant who purchased them in good faith and sold them on in the
course of their trade. The claimants brought an action based in the tort of conversion to recover
the value of the handkerchiefs. The success of the action depended upon the contract between the
Blenkarn and the claimant being void for mistake. If the contract was void, title in the goods
would not pass to the rogue so he would have no title to pass onto the defendants. Ownership of
the goods would remain with the claimant.

Held: The contract was void for unilateral mistake as the claimant was able to demonstrate an
identifiable existing business with whom they intended to contract with.

Kings Norton Metal co ltd v Edridge, Merrett & co ltd (1897) 14 TLR 98
A rogue ordered goods from the claimant using a printed letter head a claiming to be a company
called Hallum & co with offices in Belfast Lile and Ghent. In fact no such company existed. The
claimant sent out the goods on credit. The rogue sold the goods on to the defendants who
purchased them in good faith. The rogue then disappeared without paying for the goods. The
claimants brought an action for conversion of the goods based on their unilateral mistake as to
identity.

Held: the contract was not void for mistake as they could not identify an existing company called
Hallum & co with whom they intended to contract. The mistake was only as to the attributes of
the company. The contract was voidable for misrepresentation but that would not stop title
passing to the rogue and the defendants therefore acquired good title to the goods.

Phillips v Brooks [1919] 2 KB 243

A rogue purchased some items from the claimant's jewellers shop claiming to be Sir George
Bullogh. He paid by cheque and persuaded the jewellers to allow him to take a ring immediately
as he claimed it was his wive's birthday the following day. He gave the address of Sir George
Bullogh and the jewellers checked the name matched the address in a directory. The rogue then
pawned the ring at the defendant pawn brokers in the name of Mr. Firth and received £350. He
then disappeared without a trace. The claimant brought an action based on unilateral mistake as
to identity.

Held: The contract was not void for mistake. Where the parties transact face to face the law
presumes they intend to deal with the person in front of them not the person they claim to be.
The jewellers were unable to demonstrate that they would only have sold the ring to Sir George
Bullogh.

Ingram v Little [1961] 1 QB 31 Court of Appeal

Two sisters Hilda and Elsie Ingram sold their car to a rogue calling himself Mr. Hutchinson.
They agreed a price for cash, but when the rogue offered a cheque Elsie said the deal was off.
She wanted cash or no sale. The rogue then gave them his full name and address and Hilda went
to the post office, which was two minutes down the road, to check the details out. When she
returned she informed Elsie that the details checked out and the sisters agreed to let Mr.
Hutchinson take the car. The cheque was dishonoured and the car was sold on to Mr. Little. The
sisters brought an action to recover the car.

Held: The contract was void for mistake. The Court of Appeal held that the sisters only intended
to deal with Mr. Hutchinson at the address given because they were not willing to offer a sale for
payment by cheque from anyone else. This case has received widespread criticism and has not
been followed since.
Lewis v Avery [1971] 3 WLR 603 Court of Appeal

The claimant sold his mini cooper to a rogue claiming to be the actor Richard Greene (who
played Robin Hood in a series at the time). The rogue showed the claimant a Pinewood studio
pass which had Richard Greene's name and an address on it. The claimant then let him take the
car with the log book in exchange for a cheque for £430 which was later dishonoured. The rogue
sold the car on to Mr Avery for £200 claiming to be the claimant. The claimant sought return of
the car on the grounds that the contract was void for mistake.

Held: The contract was not void for mistake. The case of Ingram v Little was criticised by all of
the judges although not formally overruled. The presumption that the parties intend to deal with
the person in front of them was not displaced.

Shogan Finance v Hudson [2003] 3 WLR 1371 House of Lords

A rogue purchased a car on HP terms from a car dealer. He had produced a false driving licence
in the name of Durlabh Patel. The car dealer faxed the driving licence to the claimant finance
company and phoned through the details on the application form. The claimant then did a credit
search on Durlabh Patel and then told the dealer to let the rogue have the car. The Rogue paid
10% deposit and drove off with the car. He then sold it on to the defendant and reneged on the
finance agreement. The claimant brought an action against the defendant claiming to be the
owner of the car as the contract was void for mistake.

Held: 3:2 The contract was void for mistake. The contract concluded between the finance
company and the rogue was made inter absentes. The identity of the person was crucial to the
contract as that it was Durlabh Patel that the credit check was carried out on and the claimant
would not have allowed the car to go without the credit check. The two dissenting judges were
highly critical of the result. Lord Millet and Lord Nicholls were of the opinion that there should
be no distinction between contracts made inter absentes and contracts inter praesentes and that
Cundy v Linsey should be overruled.

b) Documents mistakenly signed – The general principle is that a person is bound to

the terms of a contract he has signed. However, pleas of non est factum (this is not

my deed) are likely to succeed if it is shown that the document signed was

fundamentally different from what the signatory believed it to be, provided he was not

careless about signing it.

Saunders v Anglia Building Society (Gallie v Lee) [1970] AC 1004- House of Lords

Mrs Gallie, a woman of 78 years, signed a document which stated it was the sale of her interest
in her home to Mr Lee. She had told them she would assign her house to the nephew as a gift on
condition that he allowed her to remain there rent free for life. She had been told by the two men
that the document she signed gave effect to that agreement. She signed the document in both
their presence but could not find her glasses so had not been able to read it. Mr Lee then used
that document to obtain a mortgage on the property for £2,000. He failed to keep up repayments
on the mortgage and the building society sought possession of the property mortgaged. Mr Lee
was a friend of Mr Parkin who was Mrs Gallie's nephew. Mrs Gallie knew that they wished to
raise some money and she had agreed to help them. The agreement between Mr Lee and Mrs
Gallie had been held to be voidable for misrepresentation. However, in the action against the
building society Mrs Gallie raised the plea of non est factum (it’s not my deed).

Held: The House of Lords found against Mrs Gallie. The document was not radically different to
that which she believed it to be in that she believed that she was relinquishing her rights to the
property in any event. Furthermore the House of Lords stated that the plea of non est factum
should not be too widely applied and reserved for those who through no fault of their own are
unable to read the document eg blind, illiterate or incapacitated through age.

LLOYDS BANK PLC V WATERHOUSE: CA 1993

The plaintiff bank claimed against the defendant under an ‘all monies’ guarantee, to which the
defendant raised defences of misrepresentation, non est factum, and negligence or breach of duty
by the bank.

Held: The court explored the inter-relationship between the doctrine and the law relating to
misrepresentation. The defence of non est factum failed, principally because the defendant had
failed to exercise proper care for his own protection. However by reason of misrepresentation or
breach of duty the bank was not entitled to rely on the guarantee.
Woolf LJ discussed the plea ‘non est factum: ‘Normally the plea is raised by a defendant who is
contending that he had been misled (usually because of fraud) by some person other than the
plaintiff as to the nature of the document which he has signed. This is not the case here. The
defendant contends that he was misled as to the nature of the document by the activities of the
bank. In these circumstances, while I do not suggest that the defendant is not entitled to seek to
rely on a plea of non est factum, I do not regard the defendant’s ability to rely on the plea as
being the primary way in which to determine the merits of his defence to the bank’s claim. It has
clearly been laid down that as a matter of principle the scope of the plea of non est factum should
be confined by the courts within narrow limits . . .’ There are two reasons for confining the scope
of the plea of non est factum. First, confusion and uncertainty would be caused if it was too easy
for a person to deny responsibility for what is contained in a contract or deed which he has
signed simply by asserting that he did not appreciate what he was signing. This reason is
applicable also to other defences such as misrepresentation which can be raised as a defence to a
contract in writing. Second, other innocent parties will rely upon the document. ‘This is not
applicable in a case such as this and so if the ordinary rules which are applicable to non est
factum have still to be surmounted by a defendant in the position of the present appellant, this
could place an unnecessarily heavy burden upon him . . However instead of having differing
standards or requirements in order to establish a plea of non est factum, I suggest that it is
preferable to protect, when appropriate, the position of a defendant who has been misled by the
activities of the plaintiff as to the nature of the document which he has signed on the grounds of
misrepresentation and breach of the duty not to mislead another party to a written contract as to
the nature of that contract.