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Mercury Tax Group Limited v HMRC: Difference between revisions
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:(b) it is [[delivered]] as a [[deed]] by {{sex|him}} or a person authorised to do so on {{sex|his}} behalf.}} | :(b) it is [[delivered]] as a [[deed]] by {{sex|him}} or a person authorised to do so on {{sex|his}} behalf.}} | ||
The court found that this language necessarily involves that the signature and attestation must form part of the same physical document constituting the deed. Additionally, the fact that the parties ''intended'' them to be deeds, rather than that they were ''required by law to be'' deeds (in order to have legal effect) was what mattered: “the fact remains that the parties intended them to be deeds and their validity must be judged on that basis”. | The court found that this language necessarily involves that the signature and attestation must form part of the same physical document constituting the deed. Additionally, the fact that the parties ''intended'' them to be deeds, rather than that they were ''required by law to be'' deeds (in order to have legal effect) was what mattered: “the fact remains that the parties intended them to be deeds and their validity must be judged on that basis”.<ref>Just quietly, we don’t think this follows: if an instrument doesn’t ''have'' to be a deed to be binding, and the way it is executed means in fact it ''isn’t'' a valid deed, the mere fact that the parties have in mind that it should be a deed does not undermine their general intention to become bound by a [[simple contract]], if the usual ingredients of offer, acceptance and consideration are present. A deed is a “super contract” — the equity of the situation surely requires it to fall back to a [[simple contract]] if one of those would, legally do. To hold otherwise is to prefer [[Substance and form|form over substance]] — like when has that ever happened.</ref> | ||
{{sa}} | |||
As a last roll of the dice, counsel for the tax dodgers appealed to the well-trodden path of signing execution pages ahead of closing and holding them in [[escrow]]: | |||
{{Quote|“... draft documents were signed by the investors ahead of all other parties signing, including the final signatory, the bank. This is perfectly normal business practice. In modern commercial times it is not practical for multi-party contracts, deeds and other instruments to be signed in the same place at the same time.”}} | |||
Well, this ''is'' perfectly normal business practice, but only where those documents were held by the signatory or its representatives (or legal counsel) pending sight of, and official signing of the documents, so that the signature pages are not flying around earlier, appended to entirely different documents, with different terms. Detaching signature pages from another document, after the fact, and appending them to an updated document isn’t really cricket, even if you have the counterparty’s tacit consent. | |||
{{Quote|“I accept that the flaws on which HMRC rely are essentially [[formal]]. But I see nothing wrong in applying a strict test of formality to the validity of the agreements with which we are concerned in this case. Their entire ''raison d’être'' is to create - and demonstrably to create - a series of formal legal relationships: if they do not do that, they do nothing.”}}{{sa}} | |||
*[[Deed]] and [[simple contract]] | *[[Deed]] and [[simple contract]] | ||
*[[Signed, sealed, delivered]] | *[[Signed, sealed, delivered]] | ||
{{ref}} | {{ref}} | ||