(

Latin Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...

for " tis not ydeed") is a defence in

contract law A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more Party (law), parties. A contract typically involves consent to transfer of goods, Service (economics), services, money, or pr ...

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 means that the signature on the contract was signed by mistake, without knowledge of its meaning. A successful plea would make the contract void . According to ''Saunders v Anglia Building Society'' 971AC 1004, applied in ''Petelin v Cullen'' 975 the strict requirements necessary for a successful plea are generally that: * The person pleading 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". (2009) 13(1) University of Western Sydney Law Review 83. 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. 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, will not allow for . Furthermore, the Court has noted that there is a heavy onus that must be discharged to establish this defence as it is an "exceptional defence".

Notable examples

In the Australian case ''Petelin v Cullen'' (1975),. 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 which 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 Specific performance is an equitable remedy in the law of contract, in which a court issues an order requiring a party to perform a specific act, such as to complete performance of a contract. It is typically available in the sale of land law, b ...

. The

High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...

found that because of Petelin's mistaken belief which was not because of his carelessness, his claim of 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. In the English case of ''Lloyds Bank v Waterhouse'' 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 . In the English case of ''Foster v Mackinnon'', an elderly man signed a

bill of exchange A negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, whose payer is usually named on the document. More specifically, it is a document contemplated by or consisting of a ...

but was only shown the back of it. He was granted a new trial. (1965) 7(2) University of Western Australia Law Review 191. Illustratively, in the

New South Wales New South Wales (commonly abbreviated as NSW) is a States and territories of Australia, state on the Eastern states of Australia, east coast of :Australia. It borders Queensland to the north, Victoria (state), Victoria to the south, and South ...

case ''Ford v Perpetual Trustees Victoria Ltd'',. (2009) 33(2) Melbourne University Law Review 368. the son of Mr. Ford (Appellant) had arranged a loan from a bank to arrange for the purchase of a cleaning business, by using his father's residential property as security. When he defaulted, the bank sought to enforce its rights under the loan and mortgage agreements. Because Mr Ford was illiterate (though capable of signing his name), suffered from a "significant congenital intellectual impairment" and had no understanding of the particulars of the agreement or consequences of non-payment, the judge at appeal found that he had been the pawn of his son throughout, and "his mind was a mere channel through which the will of his son operated". The Court dismissed the argument that the appellant had been careless as that would presume that he was capable of turning his mind to the issue and making judgements. It ruled that Mr Ford lacked legal capacity, and therefore contract was void for . This example illustrates an application of ''Petelin v Cullen'' 975as it depicts the necessary level of incapacity and level of misunderstanding required to shift the heavy burden of the party raising the defence.

References

{{reflist Contract law