First, it appears you don't understand what it is you're actually doing because of this sentence: "
The agreement in this case is actually a deed that is a legally binding contract". A deed is not an agreement - it is a deed.
Thanks Rob. Yes, I am a lay person, but I do understand what I am doing in my business (but thanks for the concern), and when I am unclear I ask questions. That is exactly what I was attempting to do.
I humbly apologise for using the term "agreement". I meant it in a broad sense (the client agrees to do things, we agree to do things - although there may be ambiguity as to whether we are providing good consideration and this is presumably why the experienced banking/finance lawyer opted for use of a deed in the first place).
There is actually a potential argument that a deed is a "type of agreement", albeit one that does not have to have the other elements of a standard contract to be legally binding, but does have other formalities;
I admit that for the
sake of clarity I should have used "document" in place of "agreement" in all of my posts, as in,
The document in this case is actually a deed that is a legally binding contract. However I might have been technically correct.
It is ironic that this mistake was made while simply trying to address Tim's issue of me using the term "contract" and "deed" in the same post, which he took exception to. So let's address that too as you have raised the same with the following issue:
The fact that the document you are referring to states "This deed is a legally binding contract..." gives me an indication it may have some problems in it.
This should not give you any indication of the document having problems in it. I have seen this in other deeds and these very documents have been tested in court and used for appointment of receivers, etc. I do not believe that the statement commencing the deed either invalidates the deed or gives any indication of problems.
Are you saying that deed cannot be a legally binding contract?
My understanding (as a lay person) is broadly that:
- there are agreements (meeting of minds, eg: lets agree to meet for coffee at 10, or I'll give $100 and you give me a bottle of wine)
- Some agreements are legally enforceable. These agreements are contracts (they must meet certain elements or have special requirements. The four most often referred to elements are agreement, intention, consideration, capacity. )
- Some contracts are written, examples are simple written contracts ("under hand") and deeds
- Deeds are a special type of written contract with special requirements (or formalities) and do not require the element of consideration
Perhaps best summed up by:
"Many agreements are made by deed. Such agreements have the peculiar characteristics of a deed and, subject to those characteristics, are governed by the general law of contracts" (Ken Aitken,
Deeds and Agreements January 1998, Law Institute Journal,
http://www.austlii.edu.au/au/journals/LawIJV/1998/11.pdf)
Or in more detail:
"A contract is formed when one party (the promisor) makes a promise which the law will enforce because certain conditions have been met. The party to whom the promise is made is called a promisee.
3 When parties enter into a contract, they do not necessarily have to reduce their agreement to writing. However, sometimes (either by choice or by necessity) the terms are reduced to writing and signed (“executed”) by the parties. The writing can be in many forms. The two broad categories which are relevant to the issues considered in this Report are deeds and simple written contracts..." (New South Wales Law Reform Commission,
Report 97 The rule in Pigot’s Case January 2001,
https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-97.pdf) - this is a great read if you want to refresh on Pigot's Case.
Therefore, while not all agreements are contracts enforceable by law, and not all contracts are in writing, and not all written contracts are deeds, I do think it is fair to classify a deed as a written contract, which is a legally enforceable agreement and therefore an "agreement" (at least in a general sense).
It is all very confusing for us lay people, especially when you lawyers have instruments like Deeds of Agreement (???), however I readily admit that in legal circles the term "Agreement" is used for a simple written contract (one that is not a deed), "A 'Contract' is also known as an 'Agreement'" (Jasmine Morris,
Contracts and other forms of agreement, https://www.artslaw.com.au/art-law/entry/contracts-and-other-forms-of-agreement/ ).
Therefore I realise I was being loose, slack or lazy to not be more clear in my rushed posts. Again I apologise and throw myself at the mercy of the Court of Legal Forums. I was wrong not to be clearer.
To avoid any ambiguity, the document I am referring to is a DEED. It is executed with the introductory wording: "
Executed as a deed on...", and all natural persons signing do so under the wording: "
signed, sealed and delivered" and need to be witnessed
.
You also state:
If nothing else, I suggest you generally follow your franchisor's directions explicitly.
You have no idea how funny that is. It is precisely because the franchisor does not have clear, explicit directions that made me to ask my original question.
I was (naively) trying to understand the intricacies of deed execution when electronic transmission and electronic copy documents are involved (as occurs a lot these days) and initiate a discussion about that. Hence I asked my original (badly worded question). Unfortunately we got stuck on my wording (my bad).
I was interested in a discussion around the common issues in a modern, hectic, email enabled, post facsimile world for businesses entering into agreements (often in the form of a deed) with each other.
Some other points of interest (or not):
In Tim Worden's excellent article (
The execution of documents – getting it right) he states: "In short, the safest course for both simple contracts and deeds is for the parties to exchange by email pdf copies of executed signature pages together with – in the same email - a Word or pdf version of the whole agreement that has been executed."
In the article that TimW from here referred to by Clayton Utz it mentioned that deed is binding on a party when it has been signed, sealed and delivered to the other parties, even if the other parties have not yet executed the deed document: Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 at 619 per Lord Denning. This seems to indicate that we do not even need to counter sign.
In a quick guide from law firm Squire Patton Boggs has an interesting distinction between executing deeds in counterpart compared to executing electronic copies -
https://www.squirepattonboggs.com/~...d/how-to-execute-a-deed-quick-guide.pdf?la=en
Anyway thank you for your input and sorry again for the confusion!