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The Execution of Deeds and Documents by Or on Behalf of Bodies Corporate

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226-224-1 THE LAW COMMISSION THE EXECUTION OF DEEDS AND DOCUMENTS BY OR ON BEHALF OF BODIES CORPORATE CONTENTS Paragraph Page GLOSSARY x PART I: INTRODUCTION Introduction 1.1 1 Background 1.2 1 Our provisional views 1.5 2 Scope of this paper 1.8 2 Arrangement of this paper 1.12 3 Acknowledgements and addendum 1.16 5 PART II: THE LEGAL NATURE AND EFFECT OF A DEED Introduction 2.1 6 Deeds and documents “under hand” 2.2 6 Definition of a deed 2.6 7 The principal features of a deed 2.7 7 Effect of a deed 2.8 8 Consideration 2.8 8 Limitation period - specialties 2.9 9 Other legal effects 2.11 10 When a deed is necessary 2.12 10 Defective deeds 2.16 11 The purpose of formalities for the execution of deeds 2.17 12 PART III: FORMALITIES REQUIRED FOR A DEED Introduction 3.1 14 The present requirements 3.2 14 The “face-value” requirement 3.3 15 Who must execute a deed 3.4 15 Execution “as a deed” 3.6 16 PART IV: EXECUTION BY CORPORATIONS Introduction 4.1 18 Different types of corporation 4.2 18 A general rule 4.3 18 Companies incorporated under the Companies Acts 4.5 19 Section 36A of the Companies Act 1985 4.5 19 The common seal 4.13 22 Official seals and authentication 4.15 23 Unregistered companies within the Companies Act 4.18 24 Corporations outside the Companies Act 4.20 24 Corporations sole 4.25 26 iii Paragraph Page Foreign Corporations 4.28 28 The Foreign Companies (Execution of Documents) Regulations 1994 4.29 28 Foreign corporations outside the Regulations 4.35 30 PART V: DUE EXECUTION Introduction 5.1 31 Corporate capacity and authority 5.4 31 Corporate capacity 5.4 31 Corporate authority 5.7 32 The doctrine of constructive notice 5.10 34 The internal management rule 5.11 35 Directors’ authority 5.16 37 Filing of particulars of directors and secretary 5.21 39 Presumptions of due execution 5.22 40 The common law presumption 5.22 40 Application of the internal management rule to deeds 5.23 40 Statutory presumptions 5.24 41 Summary 5.27 43 Fraud or forgery 5.29 44 PART VI: THE REQUIREMENT OF DELIVERY Introduction 6.1 47 What is required for delivery 6.2 47 Does affixing the seal “import” delivery in the case of a corporation? 6.4 48 Deeds and escrows 6.5 48 The dating of a deed 6.8 49 Conveyancing practice 6.12 51 Two conflicting decisions 6.15 52 A recent decision 6.18 54 Statutory modification of the law of delivery 6.19 54 Law of Property (Miscellaneous Provisions) Act (1989) 6.19 54 Companies Act 1985 6.21 55 PART VII: CONTRACTS Introduction 7.1 58 The form of corporate contracts 7.2 58 Companies Act 1985 7.3 58 The Foreign Companies (Execution of Documents) Regulations 1994 7.6 59 Corporate Bodies’ Contracts Act 1960 7.7 60 PART VIII: EXECUTION OF DEEDS ON BEHALF OF CORPORATIONS Introduction 8.1 61 Powers of Attorney 8.3 61 Introduction 8.3 61 Power to appoint an attorney 8.4 62 Method of execution by an attorney 8.10 64 WHERE THE ATTORNEY IS AN INDIVIDUAL 8.11 64 (i) SECTION 7 OF THE POWERS OF ATTORNEY ACT 1971 8.11 64 (ii) SECTION 74(3) OF THE LAW OF PROPERTY ACT 1925 8.15 67 iv Paragraph Page WHERE THE ATTORNEY IS A CORPORATION 8.16 67 (i) GENERALLY 8.16 67 (ii) SECTION 74(4) OF THE LAW OF PROPERTY ACT 1925 8.18 68 OTHER FORMS OF AUTHORISATION 8.19 68 THE EFFECT OF SECTION 1 OF THE LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) 1989 ON EXECUTION BY AN ATTORNEY 8.21 69 ARE THE FORMALITIES THOSE APPLICABLE TO THE DONOR OR THE ATTORNEY? 8.22 69 DELIVERY 8.23 70 OTHER STATUTORY PROVISIONS 8.24 70 The insolvent company 8.25 71 Liquidators 8.27 71 Introduction 8.27 71 Execution without the seal 8.30 72 Administrators and administrative receivers 8.32 73 Powers of an administrative receiver 8.33 74 Non-Administrative receivers 8.36 75 Introduction 8.36 75 Position following liquidation of the company 8.38 76 Receivers appointed by the court 8.40 77 Mortgagee 8.41 77 PART IX: THE USE OF FACSIMILE SEALS AND SIGNATURES Introduction 9.1 78 Sealing 9.3 78 Signatures 9.6 79 PART X: THE PRESENT LAW - SUMMARY The legal nature and effect of deeds 10.2 82 The formalities required for a deed 10.5 82 Execution by corporations 10.6 83 Execution under section 36A of the Companies Act 1985 10.6 83 Corporations aggregate outside the Companies Act 10.8 83 Corporations sole 10.9 83 Foreign corporations 10.10 84 Due execution 10.12 84 Delivery 10.17 85 Contracts 10.21 86 Execution of deeds on behalf of corporations 10.24 87 Execution under a power of attorney 10.24 87 Liquidators 10.27 88 Administrators and administrative receivers 10.28 88 Non-administrative receivers 10.29 88 Facsimile seals and signatures 10.30 89 PART XI: CRITICISMS OF THE PRESENT LAW Introduction 11.1 90 The legal nature and effect of a deed 11.4 90 Introduction 11.4 90 Contracts under seal 11.5 91 v Paragraph Page The formalities required for a deed 11.11 94 Introduction 11.11 94 The “face-value” requirement 11.13 94 Lack of uniformity for different types of corporation 11.16 96 Execution by companies under the Companies Act 11.20 97 Basic terms - does “execution” include “delivery”? 11.21 97 Section 36A(2) execution under seal 11.25 99 Section 36A(3) and (4) execution without a seal 11.26 99 Sections 36A(5) and (6): the statutory presumptions 11.29 100 WHEN DO THE PRESUMPTIONS APPLY? 11.30 100 THE RELATIONSHIP BETWEEN THE PRESUMPTIONS AND DIFFERENT METHODS OF DELIVERY 11.36 102 A COMPARISON OF THE PRESUMPTIONS WITH SECTION 1(5) OF THE LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1989 11.37 103 A COMPARISON OF THE PRESUMPTIONS WITH SECTION 74(1) OF THE LAW OF PROPERTY ACT 1925 11.38 103 (i) DELIVERY 11.39 103 (ii) IDENTITY OF THE OFFICERS SIGNING 11.40 104 (iii) SECRETARY OR DEPUTY SECRETARY? 11.41 105 (iv) PURPORTED SIGNATURE 11.42 105 (v) RESTRICTION TO DEEDS 11.43 105 (vi) INTENDING PURCHASERS 11.44 105 A COMPARISON OF THE PRESUMPTIONS WITH THE COMMON LAW PRESUMPTION OF DELIVERY 11.45 106 Corporate directors 11.46 106 Execution by foreign companies 11.47 106 What is a “foreign Company” for the purpose of the regulations? 11.48 107 Relationship of the regulations with requirements of local law 11.49 107 Relationship with common law rules for the creation of a power of attorney 11.50 107 Execution by corporations outside the Companies Act 11.52 108 Due execution 11.53 109 Delivery 11.57 110 The concept of delivery 11.57 110 Presumptions of delivery 11.61 112 SECTION 36A(5) OF THE COMPANIES ACT 1985 11.62 112 SECTION 36A(6) OF THE COMPANIES ACT 1985 11.63 112 Authority to deliver 11.69 114 Contracts 11.72 115 Execution of deeds on behalf of corporations 11.75 116 Powers of attorney 11.75 116 Liquidators, administrators and receivers 11.83 117 LIQUIDATORS 11.84 117 ADMINISTRATIVE RECEIVERS 11.85 118 NON-ADMINISTRATIVE RECEIVERS 11.86 118 Facsimile seals and signatures 11.87 118 PART XII: OPTIONS FOR REFORM - INTRODUCTION 12.1 120 vi Paragraph Page PART XIII: THE DISTINCTION BETWEEN DEEDS AND OTHER DOCUMENTS Introduction 13.1 121 Does the “face value” requirement adequately distinguish deeds from other documents? 13.3 121 Specialties and contracts under seal 13.6 122 Should a specialty include a deed and also any contract under seal? 13.8 123 Should any contract executed by a corporation under seal be a deed? 13.9 123 OPTIONS FOR REFORM 13.10 124 Defective deeds 13.12 126 PART XIV: THE METHOD OF EXECUTION OF DEEDS AND DOCUMENTS BY COMPANIES Method of execution 14.1 128 The advantages of execution under seal 14.2 128 The advantages of execution without sealing 14.3 129 Our provisional view 14.4 129 Method of execution without a seal 14.7 130 Extending the range of those authorised to sign 14.8 130 Two signatures or one? 14.9 131 OPTIONS FOR REFORM 14.13 132 The use of facsimile seals and signatures 14.14 133 Signature 14.15 133 The common seal 14.16 133 OPTIONS FOR REFORM 14.18 134 PART XV: SPECIFIC PROPOSALS FOR THE REFORM OF SECTION 36A OF THE COMPANIES ACT 1985 AND SECTION 74(1) OF THE LAW OF PROPERTY ACT 1925 Introduction 15.1 136 The meaning of the term “executed” 15.2 136 Execution in accordance with the articles 15.5 137 Corporate directors 15.7 138 Due execution - section 36A(6) and section 74 of the Law of Property Act 1925 15.9 138 Is a presumption of due execution still required? 15.9 138 Due execution - consistency between sections 36A(6) and 74(1) 15.11 139 IDENTITY OF THE OFFICERS 15.12 139 SECRETARY OR DEPUTY SECRETARY? 15.13 139 DEFINITION OF “PURCHASER” 15.14 140 PURPORTED SIGNATORIES 15.15 140 RESTRICTION TO DEEDS 15.16 141 OPTIONS FOR REFORM 15.17 141 Delivery 15.18 142 The concept of delivery 15.18 142 Sections 36A(5) and 36A(6), and section 1(5) of the Law of Property (Miscellaneous Provisions) Act 1989 - presumptions of delivery 15.19 142 SECTION 36A(5) OF THE COMPANIES ACT 1985 15.21 143 vii Paragraph Page SECTION 36A(6) OF THE COMPANIES ACT 1985 15.22 143 DELIVERY IN ESCROW 15.23 144 AUTHORITY TO DELIVER 15.24 144 A NEW PRESUMPTION - DELIVERY UPON DATING? 15.25 145 OPTIONS FOR REFORM 15.26 145 Execution by foreign corporations - the Foreign Companies (Execution of Documents) Regulations 15.27 146 Introduction 15.27 146 SHOULD “COMPANY” BE DEFINED? 15.28 146 SHOULD THE REGULATIONS APPLY TO ALL FOREIGN CORPORATIONS? 15.29 147 WHAT CONSTITUTES SUFFICIENT AUTHORITY FOR THE PURPOSE OF THE REGULATIONS? 15.30 147 OPTIONS FOR REFORM 15.31 147 PART XVI: GREATER UNIFORMITY FOR EXECUTION BY DIFFERENT TYPES OF CORPORATION Corporations aggregate 16.1 149 Introduction 16.1 149 Extension of execution without a seal - a common “formula” for all corporations aggregate 16.3 149 OPTIONS FOR REFORM 16.13 153 Corporations Sole 16.14 154 PART XVII: CONTRACTS Introduction
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