Non est factum is very rarely available as a plea: someone might try to avoid a contract by saying they didn't know what they were signing or thought it was something else. I would think it is enough to know what the doctrine means and to have a case or two to illustrate it. I would only mention it where it is relevant on the facts to a case of mistake (or obviously if the question specifically mentions it): it is probably a case of raising it only to dismiss it as a possibility.
********************************************************************** For example: I am asked to consider whether Mick can avoid the contract between himself and Lisa on the grounds of mistake. Before examining the principles which apply in this area it is worth noting that a party to a contract can only very rarely avoid a contract on the grounds on non est factum. Tedcastle McCormack & Co Ltd v McCrystal establishes that a plea of non est factum requires: A. That there was a radical or fundamental difference between what was signed and what it was thought was being signed. B. That the mistake was as to the general character of the document as opposed to its legal effect. C. That there was a lack of negligence. That is, that the person concerned took all reasonable precautions in the circumstances to find out what the document was. On the facts of this case it seems clear that Mick signed a document which is clearly, on its face, a contract of sale. In those circumstances, even a cursory reading of the document would have brought to his attention the fact that he was signing a contract to sell the premises. In those circumstances, it seems to me that Mick could not be said to have established any defence under the non est factum doctrine. On that basis, it does not seem to me that that ground gives rise to any possible defence. John Freeman Westland Law ********************************************************************** -----Original Message----- From: [email protected] [mailto:[email protected]] On Behalf Of Caribou Sent: 17 March 2009 20:20 To: FE-1 Study Group Subject: Re: CONTRACT! Gambling never comes up - so you can leave it out. Not sure about the second question, sombody else might know... On Mar 16, 8:06 am, ellenellen <[email protected]> wrote: > So I started studying illegality and I was wondering do I need to > study all about the gambling legislation also??? It is part of that > section? How would I even incorporate that into an answer??? Also in > terms of Mistake and the Non Est Factum Doctrine....when does that > come up? Do i just mention it as an aside to a question on Mistake or > does it sometimes come as part of a problem question?? Please help!!! --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "FE-1 Study Group" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [email protected] For more options, visit this group at http://groups.google.ie/group/FE-1-Study-Group?hl=en-GB -~----------~----~----~----~------~----~------~--~---
