Is there a requirement under law that a deed has to be physically dated (ie printed out and dated with agreement by all parties who have signed remotely), or can the dating also be done electronically after parties have signed in counterpart?

For the process to follow relating to virtual signature, see Practice Note: Virtual execution of documents and Law Society guidance: Our position on the use of virtual execution and e-signature during the coronavirus (COVID-19) pandemic.

Escrow

Consider if a delivery in escrow was agreed. Escrow is the delivery of a deed subject to certain conditions, such that it does not take effect as a deed until those conditions are satisfied (Xenos v Wickham). Once the escrow conditions have been fulfilled, the common law rule, perCoare v Giblett (1803) 4 East 85 (not reported by LexisNexis®), states that the delivery of the deed takes effect as between the grantor and the grantee, is ‘related back’ to the date of execution in escrow but only for the purposes of giving efficacy to the transaction. This means that, for example, where time is of the essence of an obligation and the time for fulfilling the condition of the escrow has passed, the doctrine of relation back cannot be applied to avoid liability for failure to fulfil the conditions on time (Security Trust Co v Royal Bank of Canada). In addition, in Alan Estates v W G Stores, it was held that, while the conditions for fulfilment of the escrow are in suspense, the grantee gets no title such as to validate their dealings with third parties.

Note that for a deed delivered as an escrow to take effect, the party making it must be fully capable, at the time of its delivery as an escrow, of doing the act evidenced by the deed. On the other hand, where the party to be bound by the deed has in all respects full capacity to do the act to be evidenced by it at the time of its delivery as an escrow, it will be no ground for avoiding the deed if they die or cease to be sui juris before the condition is performed. When a deed has been delivered to a third party as an escrow, possession of the deed by the grantee is prima facie evidence of the performance of the condition.

In spite of these common law rules, the parties to an escrow may agree that a document will be dated and become effective on the date of satisfaction of the escrow conditions.

For further information, see:

• Practice Note: Deeds

• Practice Note:Virtual execution of documents

• Commentary: Effect of delivery as escrow: Halsbury’s Laws of England [239]