Deed

A deed, also known as an indenture, is a written legal agreement that has been signed and delivered and which is enforceable even in the absence of consideration. There are formal requirements for it to be executed.

Originally, an indenture was identified by physical indentation or serration of one edge of the document — the edges had not been cut straight (or “polled”) as they would be if it was executed by just one party, and was thus a “deed poll”.

Signed, Sealed, Delivered - I'm yours

When is a deed delivered?

Historically, delivery occurred when the document was received by the other side — a deed becomes enforceable once it has been shown to the other parties. As the law evolved, the concept of “delivery” became the point at which it could be shown that it was intended that the document would become binding. This is still the test used today.

For companies, a deed is deemed to have been delivered in accordance with the provisions of the Companies Act. However, no deemed delivery provisions apply to individuals.

Bibby v Magson

Bibby Financial Services Ltd v Magson [2011] EWHC 2495

Bibby Financial Services Ltd (Bibby) offered an invoice discounting facility to a company and, as security for amounts due to Bibby, two directors of the company were required to enter into personal guarantees and warranties in respect of sums due.

The company defaulted. Bibby sought to enforce the personal guarantees.

The directors argued that neither the personal guarantees were not binding. because they were executed as deeds and while all signatures had been witnessed and the documents had been handed over, the directors asserted the documents had not been delivered.

The directors’ personal guarantees, even though signed and witnessed, were not in a final form: Manuscript amendments had been made with the intention that clean versions of the documents would be prepared incorporating the amendments, which would then be circulated and signed again.

At trial the directors’ argument won and Bibby could not enforce the documents as they had not been delivered as deeds. Whilst the case adds nothing new to the law surrounding the execution of deeds, it is a timely reminder that delivery of a deed should not be overlooked.

It is possible to include clauses in deeds setting out when delivery occurs, usually when the document is dated. An alternative would be for a side letter to be prepared stating that delivery has occurred.

Ammwell View

The legal community wags its prurient finger and admonishes the layman about the timely warning this case represents that one must get ones paper work right (subtext: make sure you call a lawyer). But on its face this is a poor decision. Clearly the directors' intentions in manscripting the changes and then executing the document evidences that they intended the documents to be binding. But ambulance chasing — or perhaps ambulance defending — members of the legal community see this as a good decision. Eheu.