Q&As

Can a document executed and described as a deed be subsequently validly varied by solicitors’ exchange of emails?

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Published on LexisPSL on 24/06/2020

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • Can a document executed and described as a deed be subsequently validly varied by solicitors’ exchange of emails?
  • The requirements for variation of a deed
  • Can a deed be varied by email?
  • Can a solicitor execute a variation to a deed by exchange of email?

The requirements for variation of a deed

It was formerly a rule of common law that contracts entered into by way of deed could only be varied by deed. This conflicted with an equitable rule that allowed variation to a deed to be made by way of a simple contract (whether in writing or orally).

As a result of section 49 of the Senior Courts Act 1981, which provides that equity prevails in any conflict with the common law, variations to deeds may be made by simple contract. However, it will be necessary to consider the existing status of the deed document, the nature of the proposed amendment and the impact which the amendment will have on either the party entitled or the party liable under the deed. If a document is required by law to be made by deed, any document that amends operative parts of that document must also be made by deed. Otherwise, a deed can be varied by simple contract if two conditions are met: (1) the original deed does not specify that any amendment must be made by deed and (2) there is consideration for the variation. It is prudent, however, to effect variations by way of deed to mitigate the risk that a variation is not effective due to a failure of one or more of the elements required for

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