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Electronic signatures on a deed vs a contract

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Oct 11, 2016

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Hello,

Its widely accepted that electronic signatures are sufficient to sign contracts with.

Deeds are legally different to contracts.

Deeds need (according to the law society)

4.3 Deeds

At common law, a deed must be in writing. Given the willingness of the courts to interpret various statutory requirements for writing to include the situation where a document is represented on a screen and executed with an electronic signature, in the opinion of leading counsel and the JWP, the approach outlined above would apply in respect of deeds. For the execution of deeds:

(a) Section 46 of the Companies Act 2006 (the CA 2006) provides that a document is validly executed as a deed by a company incorporated under the CA 2006 if it is duly executed and is delivered as a deed.

  1. section 44 of the CA 2006 provides that one of the ways in which a document can be validly executed by a company incorporated under the CA 2006 is by signature by two directors or by one director and the company secretary (authorised signatories). In the opinion of leading counsel and the JWP, this can be achieved by each of two authorised signatories signing the deed (using an electronic signature or another acceptable method) either in counterpart or by one authorised signatory signing, followed by the other adding his or her signature to the same version (electronic or hard copy) of the deed.
  2. (ii) In the opinion of leading counsel and the JWP, delivery can be achieved through electronic signing, but the parties will have to take steps to ensure the signing arrangements adequately address when delivery takes place, particularly if the parties propose that their lawyers hold their signed documents to the order of the relevant party prior to the deed coming into effect.

(b) section 1(3) of the LP(MP)A 1989 provides that an instrument is validly executed as a deed by an individual (including an individual acting under a power of attorney) if it is signed by him in the presence of a witness who attests the signature (and, by section 1(4), 'sign' includes making ones mark on the instrument). Section 44 of the CA 2006 provides that another of the ways in which a document can be validly executed by a company incorporated under the CA 2006 is if it is signed on behalf of the company by a director of the company in the presence of a witness who attests the signature. In the opinion of leading counsel and the JWP, where a suitable signatory signs a deed using an electronic signature and another individual genuinely observes the signing (ie he or she has sight of the act of signing and is aware that the signature to which he or she is attesting is the one that he or she witnessed), he or she will be a witness for these purposes. If that witness subsequently signs the adjacent attestation clause (using an electronic signature or otherwise), that deed will have been validly executed. The practical means of witnessing different forms of electronic signature will need to be settled on a case-by-case basis, with consideration given to the evidential weight of the form agreed (see paragraph 5 below). However, in the opinion of leading counsel and the JWP, it is best practice for the witness to be physically present when the signatory signs, rather than witnessing through a live televisual medium (such as a video conferencing facility), in order to minimise any evidentiary risk as to whether the person genuinely witnessed the signing.

Are there any examples of companies using Adobe Sign to allow deeds to be signed legally?

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Electronic signatures on a deed vs a contract

New Here ,
Oct 11, 2016

Copy link to clipboard

Copied

Hello,

Its widely accepted that electronic signatures are sufficient to sign contracts with.

Deeds are legally different to contracts.

Deeds need (according to the law society)

4.3 Deeds

At common law, a deed must be in writing. Given the willingness of the courts to interpret various statutory requirements for writing to include the situation where a document is represented on a screen and executed with an electronic signature, in the opinion of leading counsel and the JWP, the approach outlined above would apply in respect of deeds. For the execution of deeds:

(a) Section 46 of the Companies Act 2006 (the CA 2006) provides that a document is validly executed as a deed by a company incorporated under the CA 2006 if it is duly executed and is delivered as a deed.

  1. section 44 of the CA 2006 provides that one of the ways in which a document can be validly executed by a company incorporated under the CA 2006 is by signature by two directors or by one director and the company secretary (authorised signatories). In the opinion of leading counsel and the JWP, this can be achieved by each of two authorised signatories signing the deed (using an electronic signature or another acceptable method) either in counterpart or by one authorised signatory signing, followed by the other adding his or her signature to the same version (electronic or hard copy) of the deed.
  2. (ii) In the opinion of leading counsel and the JWP, delivery can be achieved through electronic signing, but the parties will have to take steps to ensure the signing arrangements adequately address when delivery takes place, particularly if the parties propose that their lawyers hold their signed documents to the order of the relevant party prior to the deed coming into effect.

(b) section 1(3) of the LP(MP)A 1989 provides that an instrument is validly executed as a deed by an individual (including an individual acting under a power of attorney) if it is signed by him in the presence of a witness who attests the signature (and, by section 1(4), 'sign' includes making ones mark on the instrument). Section 44 of the CA 2006 provides that another of the ways in which a document can be validly executed by a company incorporated under the CA 2006 is if it is signed on behalf of the company by a director of the company in the presence of a witness who attests the signature. In the opinion of leading counsel and the JWP, where a suitable signatory signs a deed using an electronic signature and another individual genuinely observes the signing (ie he or she has sight of the act of signing and is aware that the signature to which he or she is attesting is the one that he or she witnessed), he or she will be a witness for these purposes. If that witness subsequently signs the adjacent attestation clause (using an electronic signature or otherwise), that deed will have been validly executed. The practical means of witnessing different forms of electronic signature will need to be settled on a case-by-case basis, with consideration given to the evidential weight of the form agreed (see paragraph 5 below). However, in the opinion of leading counsel and the JWP, it is best practice for the witness to be physically present when the signatory signs, rather than witnessing through a live televisual medium (such as a video conferencing facility), in order to minimise any evidentiary risk as to whether the person genuinely witnessed the signing.

Are there any examples of companies using Adobe Sign to allow deeds to be signed legally?

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Oct 11, 2016 0
Nov 11, 2016

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Hi rishis69599870​,

You can contact our Technical support team for the details, please check my private message for the contact information.

Regards,
Aadesh

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