Corporate & Securities Law

“Executed as a Deed”

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?

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?

Full post as published by AdamsDrafting on May 02, 2009 (boomark / email).