Tribute to Justice Cecilia Koranteng-Addow - commentary

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Parent Category: Justice & Security

Created on Tuesday, 09 July 2013 00:00

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COMMENTARY

BOUND BY YOUR SIGNATURE? In L’Estrange v F. Graucob Ltd [1934] 2 KB 394, the claimant bought an automatic slot machine from the defendants. She signed an order from which contained a clause which excluded liability for express and implied warranties. When the claimant discovered that the machine did not work she brought an action against the defendants for breach of an implied warranty that the machine was fit for purpose for which it was sold. Judgement was given for the defendants on the grounds that they had excluded their liability by virtue of the exclusion clause which was incorporated into the contract by the claimant’s signature, even though the exclusion was ‘regrettably small print’ and had not been read by the claimant. Ewan Mckendrick (2003) writes that given the widespread use of contracts which rely heavily upon the use of small print, such a rule appears singularly unfortunate, especially in its application to consumers.

The Ontario Court of Appeal in Tilden Rent-a-Car Co. v Clendennin (1978) 83 DLR (3d) 400 recognised that many standard form printed contracts are signed without being read or understood. The court accordingly, held that a signature could only be relied upon as evidence of genuine consent when it was reasonable for the party relying on the signed document to believe that the signer did assent to the onerous terms proposed. The L’Estrange rule does not apply where signature has been procured by fraud, misrepresentation or the defence of non est factum- ‘this is not my deed’) is made. Non est factum is where an illiterate person signed a deed which had been read out to him incorrectly by another person. The effect here is to render the deed void so that a third party cannot obtain good title under it. The rule had to grapple with two competing policies:

Firstly, the injustice of holding a person to a bargain in which he has not brought a consenting mind and the necessity of holding a person to a document which he has signed, especially where innocent third parties rely to their detriment upon the validity of the signature. The non est factum defence is unavailability to the careless. In United Dominions Trust Ltd. v. Western [1976] QB 153, the defendant signed a loan agreement with the claimant company in connection with the purchase of a car and left it to the garage owner to fill in the details, including the price. The garage owner inflated the price of the car and the claimant company paid over the money to the garage owner in good faith. It was held that the onus was on the defendant to show that, allowing the form to be filled in by the garage owner, he had acted carefully as he had wholly failed to discharge that onus and therefore could not invoke non est factum. Having said, we now consider Ex parte Shackleford, which examined the validity of a signature of judicial decision-maker in a constitutional matter.