Signed as a deed

[Ripped-Off]

Re: Signed as a deed

Isn't the acknowledgement clause just to clarify that the parties intend the contract to be a deed rather than a clause to say that contract has been signed when in fact it hasn't? If that were not the case, then there'd ben no point signing a contract at all. A clause could be inserted to defeat the purpose of a signature.

It doesn't say on the face of the contract that it is a deed. It only says this beneath clause 12.

[Openlaw15]

Re: Signed as a deed

It's become more complicated and confusing now. Some very useful and interesting information from both of you but the conflicting opinions are making this more difficult to understand.
I get that the solvency of the guarantor would affect the guarantee but it was the Ltd company that became insolvent and not the guarantor.
With regard to the actual document, are we saying that it doesn't need a physical signature by a representative of the bank to mean that it has been signed?

The reason why it was appearing complicated is because Rob and I were approaching remedies for you from contrasting positions.

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Isn't the acknowledgement clause just to clarify that the parties intend the contract to be a deed rather than a clause to say that contract has been signed when in fact it hasn't? If that were not the case, then there'd ben no point signing a contract at all. A clause could be inserted to defeat the purpose of a signature.

It doesn't say on the face of the contract that it is a deed. It only says this beneath clause 12.

The problem is the Op has signed for it to that effect. It may well be that the bank didn't sign it...but the Op has indicated that the bank has signed it as 'acknowledge' is term of the guarantee.

[R0b]

Re: Signed as a deed

Isn't the acknowledgement clause just to clarify that the parties intend the contract to be a deed rather than a clause to say that contract has been signed when in fact it hasn't? If that were not the case, then there'd ben no point signing a contract at all. A clause could be inserted to defeat the purpose of a signature.

It doesn't say on the face of the contract that it is a deed. It only says this beneath clause 12.

Yes you are right, it is an acknowledgment that the parties have received legal advice but this goes against the Etridge principles and I'm not too sure it would fly anyway if the deed was in fact valid. They would have to specifically go through the agreement and inform them of their rights and liabilities or get an acknowledgement from the solicitor.

[Openlaw15]

Re: Signed as a deed

Isn't the acknowledgement clause just to clarify that the parties intend the contract to be a deed rather than a clause to say that contract has been signed when in fact it hasn't? If that were not the case, then there'd ben no point signing a contract at all. A clause could be inserted to defeat the purpose of a signature.

It doesn't say on the face of the contract that it is a deed. It only says this beneath clause 12.

Well the law is that when you sign a contract you are legally bound whether you read or understood those terms is irrelevant. So the fact that the guarantor signed for the acknowledgement, a likely salient term of the guarantee, that it was effectively signed and deliver as a deed. The offer was the guarantee and the acceptance was the Op/ guarantor's signature to the guarantee's terms. The Op has essentially stated that he acknowledges that the bank has signed the guarantee, as it says "I/ we" when in reference to the bank's terms.

[Ripped-Off]

Re: Signed as a deed

Yes I was aware of that...l'estrande v Gracob wasn't it?

However, for a document as important as this, covered by a multitude of statutes which are meticulous about how the deed is to be delivered, doesn't it strike you as odd that the bank haven't bothered to sign it, yet they may want to rely on a clause that, in my view, is only an acknowledgement that the contract when signed and delivered will be a deed. I cannot see it as a waiver of duty to sign the contract.

[Please don't waste your time explaining contract by performance, I am fully aware of the provisions].

[pobrm]

Re: Signed as a deed

I was under the impression that "I/We have signed this guarantee" was making reference to myself and any other guarantor on the document as it is a document signed and sent back to the bank. I have signed other guarantees as deeds in the past and always had a member of the bank there to sign the same document.

[Openlaw15]

Re: Signed as a deed

Yes I was aware of that...l'estrande v Gracob wasn't it?

However, for a document as important as this, covered by a multitude of statutes which are meticulous about how the deed is to be delivered, doesn't it strike you as odd that the bank haven't bothered to sign it, yet they may want to rely on a clause that, in my view, is only an acknowledgement that the contract when signed and delivered will be a deed. I cannot see it as a waiver of duty to sign the contract.

[Please don't waste your time explaining contract by performance, I am fully aware of the provisions].

section 1 (2) (3), L(MP)A 1989:

"(2) An instrument shall not be a deed unless—(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and
(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

(3) An instrument is validly executed as a deed by an individual if, and only if—
(a)it is signed—
(i) by him in the presence of a witness who attests the signature; or
(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and
(b)it is delivered as a deed by him or a person authorised to do so on his behalf."

Update: It would seem the statutory 'him' above relates to the one who validly executes the guarantee as a deed. The him is the Bank therefore. The problem by the wording it looks like the guarantee states you acknowledge the bank signing it as a deed.
Well no, not odd as it was a commercial agreement...companies do business over the phone...terms are being argued to and fro. Are there any authorities that state the company must sign?

[Ripped-Off]

Re: Signed as a deed

So you are telling me that as long as one person signs a deed with witnesses, the other party to the contract doesn't have to nor do his witnesses?

[pobrm]

Re: Signed as a deed

So, would the fact that the document was sent back through the postal system constitute that an authorised person delivered the deed?
The bank would obviously be aware of what is required to make a deed valid, whereas I would have had no idea.

[Openlaw15]

Re: Signed as a deed

I was under the impression that "I/We have signed this guarantee" was making reference to myself and any other guarantor on the document as it is a document signed and sent back to the bank. I have signed other guarantees as deeds in the past and always had a member of the bank there to sign the same document.

The terms have to be read as a whole. The terms under acknowledgement at clause 12, are: The guarantor acknowledges that the Bank has advised the Guarantor to seek legal advice... I/ We have signed this guarantee and have delivered it as deed on the date of this Guarantee. Given the context the terms imply 'I/ We is the bank. It says therefore the bank delivered the guarantee as a deed and was signed to that effect pursuant to law: s.1, L (MP) A 1989. At clause 11 the bank has also informed you of its right to transfer any liabilities, ie assign debt to third parties such as debt collection agencies which are to be binding as though it were the bank's rights itself.

[pobrm]

Re: Signed as a deed

A point I would like to raise is this. On the document, in the areas I have blanked out. The document was received on the 19th October, however the guarantee was given on the 18th October. Would there be any strength in this standing up as having not been delivered?

[pobrm]

Re: Signed as a deed

In the Bibby vs Magson case, as I have seen mentioned on here, the deed was described as being delivered by the borrower to the lender "The court held, on the facts, that the PGs had not been delivered, in the technical sense, by merely being handed over to Bibby after signature."
So, how is it in this instance that the form is stating that it is being signed and delivered as a deed by the bank? Surely it doesn't become a deed until it has been signed and witnessed by the guarantor. Hopefully I'm not being stupid here but it's just how I interpret it?

[Openlaw15]

Re: Signed as a deed

So, would the fact that the document was sent back through the postal system constitute that an authorised person delivered the deed?
The bank would obviously be aware of what is required to make a deed valid, whereas I would have had no idea.

Delivery likely just means transfer of physical possession of the guarantee to another ie you. It could be just handed over. Or it could be posted to your home address.

[Ripped-Off]

Re: Signed as a deed

Pobr.......Sorry if this has been covered in an earlier post, but I'm a little confused.

After reviewing the last page of the guarantee, there appears to be two main signatories (one on the left and one on the right) and two witness signatories.

I thought I had read in a post that the bank hadn't signed the document. If that is correct, who is the other signatory if one of them is yourelf?
The witness appears to be the same person on both the left and right side of the signature page.

[pobrm]

Re: Signed as a deed

I was under the impression that delivery is a key component here and that delivery should be by the guarantor or an authorised person and therefore the same should be by the bank. At the time of signing, neither guarantor had any idea of the implications of it being a deed as we didn't understand this would be different from a normal agreement. I know it states the 'legal advice' clause and it could be argued we should have done our own due diligence, but, had it been a face to face meeting then certain aspects could have been clarified before signing.
What then should be the approach to take. Has it been properly executed or not? And if it has then what line should be taken? Do I start with the line that it hasn't been executed properly and is therefore statute barred and see what they say or should I take another route?

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Hi. There were two Guarantors, both of whom were directors of the company and they are the signatories on the document. The witness was the same for both and was an employee who worked in the office at the time.