“Executed as a Deed”

Posted on May 1, 2009 by Ken Adams

While researching the implications of the word deed (see today’s blog post on deed), I encountered a contract with the following concluding clause:

THIS AGREEMENT has been duly executed as a Deed on the date stated at the beginning of this Agreement.

The phrase executed as a deed also occurs in signature blocks. A variant is signed as a deed. A quick search of the SEC’s EDGAR system suggests that these phrases are most commonly found in contracts governed by English law, but I also found them in contracts governed by New York law.

As regards contracts governed by English law, the explanation for these phrases is that since 2005, for a document to constitute a deed under English law it’s not enough that it be signed under seal—it has to say that it’s a deed. Hence executed as a deed and signed as a deed. The same goal could be acccomplished instead by means of appropriate wording in the title and introductory clause. Click here for an explanation by the English law firm Olswang.

It’s clear from this and from comments to my post about having two people sign for one party that in the third edition of MSCD I’ll need to discuss at greater length contract-signing formalities under English law. (This is one area where my assertion that MSCD‘s recommendations apply to all jurisdictions may need to be tweaked.) Is it possible that English law on such matters is a bit of a nuisance? As I note in my post on deed, the distinction between deeds and other kinds of contracts is just so much formalism.

Does any other jurisdiction (Canada? Australia?) have a comparable law?

As regards occurrence of executed as a deed and signed as a deed in contracts governed by New York law or the law of any other U.S. state, I suppose the intended function is the same—to have the contract considered one under seal. I can’t imagine that the matter is addressed in any statute, and I haven’t yet looked for any caselaw. Does anyone have any insight?

Posted in Uncategorized | 7 Comments

  • http://www.mypracticelaw.org Gregory Luce

    I’m thinking this may not be the same, but Minnesota has a number of laws that require a specific instrument to be “signed, witnessed and acknowledged in the manner provided for deeds of real estate.” This specific one relates to disclaimers in a probate matter and is at Minn. Stat. 525.532, subd. 1(c).

  • Ken Adams

    Gregory: I guess the question is what Minnesota law requires by way of signing formalities for deeds. Ken

  • Art

    I sometimes draft contracts as English law contracts which later become converted to New York law after negotiation – it may be that the New York deeds were originally drafted by English lawyers and the wording simply remained as a useless but harmless appendage. Or it may be taken from a precedent of template governed by UK law.

    The particular requirement to add the “as a deed” wording isn’t particularly onerous – it takes about a minute to copy and paste from your last deed, after all – and probably quite helpful in clearly identifying what is a deed and what is not, especially as the signing formalities for deeds in the UK do not require the involvement of a seal.

    More generally though, the UK formalities of signing as a deed could be simpler as there are various ways of doing it (which I can rarely recall off the top of my head).

  • http://www.whitecase.com Scott

    Ken, as you seem to have anticipated, the laws relating to deeds in Australia are very similar the English laws.
    Scott

  • Richard

    Executing as a deed is required in certain types of agreements under English law, for example a power of attorney (many SPAs include POAs, I can expand on the reasons for this if needed), if there is no consideration, if the agreement runs for longer than a specific period of time (I think 12 years? Might be shorter than that) which is why most shareholders agreement are signed as deeds.

    There are certain formalities for executing as a deed, for example a signature of an individual needs to be witnessed. For a company the rules are one of the following: 1) two directors 2) director and secretary 3) one director whose signature is witnessed (this is a recent amendment to the law).

    I agree it’s all a bit of nuisance.

  • michael pye

    I have a case where a contract has been signed as a deed but there is no date on the contract. Can anybody comment on this please?

  • lucy

    Michael – confirm the date upon which the last party signed and insert this date in the deed.