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We have assumed that: the query relates to the execution of a business-to-business commercial agreement subject to the laws of England and Wales.
In our searches we can find no requirement for a 'wet ink' date to be applied to an agreement instead of an electronic date stamp.
A date is not essential to the validity of a deed (Morrell v Studd & Millington). A deed takes effect on the date of its delivery (section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989). The concept of delivery means that it is possible for a deed to be valid even if it has not been dated. If a deed is not dated, external evidence is admissible to prove the correct date from which it was intended to operate (Silver Queen Maritime Ltd v Persia Petroleum Services plc)
Where a date is inserted, it is presumed that the date is the date on which it took effect. However, this presumption may be rebutted by evidence to the contrary (Browne v Burton (1847) 17 LJQB 49 (not reported by LexisNexis®)).
Delivery may be conditional or unconditional (see ‘Escrow’ below). A deed that is delivered unconditionally is effective immediately (provided the other formalities are complied with) and is irrevocable (Longman v Viscount Chelsea).
When considering the purpose of the dating of the deed, is this to also confirm when delivery takes place and it becomes binding on each party? The dating of the document must therefore reflect the agreement of the parties as to their intention to be bound on signature of the deed.
Where the parties agree for execution in counterpart, it is good practice to agree how the dating of the document will occur.
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.
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]
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