SIGNED, SEALED AND DELIVERED
The words “signed, sealed and delivered” are commonly used in deeds. But what happens if there is no physical seal? In Lim Zhipeng v Seow Suat Thin [2020] SGCA 89 (“Lim v Seow”), the Singapore Court of Appeal considered whether a deed had been “sealed” notwithstanding that there had been no seal.
Background. The creditor sued the guarantor of the debtor for defaulting on a Deed of Guarantee. In the High Court, the court held that the deed was not enforceable as it was not sealed. Further, the court found that no consideration was provided for the guarantee. The court thus dismissed the creditor’s claim. ([19] Lim v Seow).
The appeal. On appeal, the appellant creditor argued (among others) that the lack of a seal was not fatal to the Deed of Guarantee being a deed. In particular, the creditor sought to submit that “… to satisfy the sealing requirement, it is sufficient that the maker of the document intended to deliver the document as his act and deed” ([39] Lim v Seow).
No physical manifestation of seal. The Court of Appeal observed that the Deed of Guarantee identified itself as a deed, the final paragraph stated “the parties have executed this Guarantee as a Deed”, and the execution portion provided for the deed to be “signed, sealed and delivered”. Nonetheless, there was no physical manifestation of a seal on the deed. ([40] Lim v Seow).
Deed was not sealed. The Court of Appeal held that there was no evidence that the guarantor intended to execute a deed. There was not even an inscribed circle which could be sufficient to indicate a seal ([42] Lim v Seow).
In this regard, the Court of Appeal referred to the English decision of TCB Ltd v Gray [1986] Ch 621 with approval at [43] Lim v Seow, and emphasized (among others) the following statement from Browne-Wilkinson VC’s judgment:
“… Yet no case in the High Court has been cited to me in which the court has gone as far as it would necessary to go in this case, there being nothing to indicate that something amounting to sealing took place beyond the fact that the words of the document refer to its having been sealed. …”
While the guarantor did visit a lawyer, “there was no evidence she was told about the sealing requirement”, and the guarantor “herself did not testify that [the lawyer] had explained the distinction between a deed and an ordinary contract to her”. Further, the lawyer had “wrote below his signature that he had not acted as a lawyer.” As such, the Court of Appeal stated that “there is no evidence, apart from the Respondent’s desire to assist the Debtor by granting a guarantee in favour of the Appellant, that the Appellant intended to execute a deed.” ([41] – [42] Lim v Seow).
Estoppel. It is important to note that the Court of Appeal stated that usually, the guarantor could be estopped from denying the sealing if “he has delivered the document to the other party knowing that the latter will rely on the document and that party did indeed rely on it to its detriment”. Indeed, the Court of Appeal stated that it “would not have been hard” for the creditor to plead estoppel. However, since creditor had not pleaded estoppel, Court of Appeal held that the creditor could not rely on estoppel in this case. ([45] Lim v Seow).
We pause to highlight that Lim v Seow is also an important reminder for ensure that if a party intends to rely on estoppel, it must be pleaded.
Sufficient consideration. Nonetheless, the Court of Appeal held that there was sufficient consideration provided by the creditor, based on the creditor’s forbearance to file a proof of debt against the debtor (who had been made bankrupt by another creditor) in exchange for the respondent guaranteeing the debt ([67] Lim v Seow). Thus, the guarantee was enforceable as a contract.
Significance. For deeds executed by individuals, it is still a requirement under Singapore common law for the deed to be signed, sealed and delivered.
In this regard, while there is no need to affix a wax seal to the deed as in the older days, it remains important to have, at the very least, a physical manifestation of a seal, such as by drawing a circle over the place of the deed and signing on it (similar to that in First National Securities Ltd v Jones and another [1978] Ch 109).
Therefore, when you see the words “signed, sealed and delivered”, pause and ask if the document is intended as a deed, and if the requirements for a seal have been met. If not, there is a risk that you may face an issue in the future over whether the formal requirements of a deed have been satisfied.
Tags: Deed; Executing a deed; Seal; Sealing requirement; Estoppel; Consideration
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