Buyer Representation Agreements and the Non Est Factum Defence

Non est factum is a very strong defence. It essentially means that there was no agreement reached in the first place. The problem is that it is very, very difficult to prove.

The defence of non est factum means that the signature on the contract was signed by mistake, in error, without knowledge of its meaning, or even seeing or understanding the document.

In most cases, it reserved for those with cognitive impairment or disabilities, the illiterate, the blind or the deaf (in the case of an oral contract).

The true test of the defence arises in those cases where there are two innocent victims and Courts are placed to the test the defence. Consider the application for a loan by a son, and the father who doesn’t speak or read English is offered as the guarantor. Both the father and the Bank are innocent victims and the Courts are placed in the unenviable position of having to choose between them.

The defence of “Non Est Factum” works in Buyer Representation Agreements where the Buyer doesn’t either see or is permitted to view the document or where a false and simplistic explanation is offered.

“It’s routine… it just says that I am allowed to show you this house…”

In fact, it’s far from routine:

“You can’t buy a house anywhere in Ontario, from anybody without paying me a commission.”

Brian Madigan LL.B., Broker

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