YOU may have seen the reference in documents to “Executed as a deed”, “Signed, sealed and delivered”, or “Executed under the common seal” and wondered, “What do these terms really mean? Are they really necessary?”

What is a deed?

A deed is a written document that is executed in a particular way to make it binding in law and equity, and it confers certain legal rights, obligations, or interests in property to a person. Historically, deeds had very particular requirements and rules which related to their proper execution, down to the type of paper that could be used (much like a magic scroll). Because of these stricter requirements a deed would carry a greater presumption of validity than a document that is merely signed by the parties. Importantly, no consideration (money) or exchange is necessary before the maker(s) of a deed are bound as a deed is binding upon proper execution.

WHY WOULD YOU NEED SOMETHING TO BE EXECUTED AS A DEED?

In Jamaica, certain rights can only be passed by deed. A few fairly common examples of this are a Power of Attorney, which must be done as a deed, and a transfer of unregistered land, which the Conveyancing Act says should be done by a deed. Deeds are also a good way to legally give effect to gifts that are not accompanied by delivery of possession.

WHAT IS NEEDED FOR A VALID DEED?

A deed must be in writing, must express that the party named in the deed undertakes to be bound in law or equity by the terms of the deed, must make it clear on its face that it is a deed, and must be executed in a particular manner — that is “signed, sealed and delivered” or “executed under the common seal” of a company.

WHAT DOES “SIGNED, SEALED, AND DELIVERED” MEAN?

“Signed” comes first and means that the party intending to be bound by this deed should affix his signature to the end of the document to indicate his intention to be bound.

“Sealed” means that the person executing the deed has affixed his seal onto the document as a further indication that the document was executed as a deed and should be treated with the highest level of validity. This used to mean adding a few drops of hot wax and impressing your mark on the paper in a fancy pattern. In modern day however, case law has intervened to make it sufficient for the person executing the document to state in the document that it was sealed. Thus, inserting the words “Sealed by” before an individual’s name in the execution clause is sufficient to satisfy the sealing requirement.

“Delivered” in this case does not mean hand-delivered or given physical possession of the document. A deed can be delivered even though it remains in the possession of the maker. The maker is bound by the deed if he has done some act demonstrating an intention to be bound by the deed. Case law, once again, has also shown us that stating that the deed is delivered in the execution clause is an act evincing an intention to be bound.

We have now unravelled the mystery of what the three magic words “signed, sealed and delivered” mean, but what about the other incantation, “Executed under the common seal”?

EXECUTION OF DEEDS BY COMPANIES

For companies, the execution of a document as a deed is done by affixing the common seal of the company or corporation to the document. The company’s seal must be affixed according to its Articles of Incorporation. This usually requires that the document to which the seal is affixed is signed by a director and countersigned by the company secretary, a second director, or some other person appointed by the directors for the purpose. Much like in the case of an individual, the signing clause must state that the common seal of the company has been affixed — this is the meaning behind the popular phrase “executed under the common seal of [the company]”.

Now that we’ve seen the enchanting power of deeds, maybe it’s possible that a properly executed deed will be the “Open sesame!” you use to secure your next treasure.

Luke Phillips is an associate at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial Department. Luke may be contacted via Luke.Phillips@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.