Sealing an
agreement
29/09/2009 The Star ARTICLES OF LAW WITH BHAG SINGH
Though the word ‘sealed’ is used in many documents, a seal is not always
required. Its use merely indicates an intention to affirm the transaction.
WHILST the structure of a document and how it is signed changes all the
time, one still comes across a variety of phrases which are used to
conclude what has been set out. Such words may be near to or around where
the signature is placed.
In this regard, it is common to come across phrases such as “Signed,
sealed and delivered by the above named in the presence of” or “In witness
whereof the ... has hereunto set his hand and seal the day and year first
before written.”
On occasions there is also to be found near the place of signing, the
characters “L.S.” in a circle. Few people pay attention to what it means
or implies. More on that later.
Yet in most such cases relating to a transaction, there is not to be found
any seal on the document, meaning a physical seal visible on the face of
the document. What is the status of such a document, asked a reader?
In present times there is more likely to be familiarity with a company
having a common seal. This is normally a metallic gadget which has a metal
plate with the name of the company in a circle and the words “common seal”
within it.
The seal
Common seals apart, what does the word “seal” mean?
According to the Oxford Advanced Learners Dictionary, the word as a noun
refers to an official design or mark stamped on a document to show it is
genuine and carries the authority of a particular person or organisation.
The meaning of the word and the imperative for its use has come up for
discussion from time to time.
One such case was First National Securities Ltd vs Jones and Another.
It was an action by the plaintiff for possession of the property which was
charged to it. The action was initially dismissed on the basis that the
charge document was not sealed.
There were conflicting views as to the need and effect of a seal in
relation to the execution of a document. This resulted in the matter being
taken to the Court of Appeal with regard to the validity of the charge
document that was the subject of the dispute.
The Court of Appeal ended up reversing the decision and took the view that
for the due execution of a deed, it is not necessary always to have any
physical seal, or even any impression on the paper, as long as the
evidence established that the document is delivered by the relevant party
as his act and deed.
In this regard, reference was made to an earlier case In Re Sandilands
which involved acknowledgment by certain married ladies in Australia of a
deed as their act and deed.
A Special Commission had been issued for taking acknowledgment of the deed
at Melbourne by the ladies in question. The deed was sent out to them but
it had no physical seal upon it.
There were pieces of green ribbon attached to the places where the seals
should have been. The attestation was in the usual form, “signed, sealed
and delivered by” and the signatures were duly attested.
There was, however, a certificate of two commissioners, stating that the
ladies in question appeared personally before them and produced the deed
acknowledging the same to be their respective acts and deed. No physical
seal was ever put upon the documents.
In those circumstances, the court took the view that the deed had been
sufficiently executed. Bovill CJ in doing so went on to discuss the effect
of using the words in the paragraph that follows:
“To constitute a sealing, neither wax nor wafer, nor a piece of paper, nor
even an impression, is necessary. Here is something attached to this deed
which may have been identified for a seal, but which from its nature is
incapable of retaining an impression. Coupled with the attestation and
certificate, I think we are justified in granting the application that the
deed and other documents may be received and filed by the proper officer,
pursuant to the statute.”
“Any contention that a valid document must have a mark, wafer or seal
visible on the face of it is no longer necessary ... in the absence of
very specific contractual or statutory provisions.”
Spread of education
As said by Danckwerts J in Stromdale and Ball Limited v Burden: “Time was
when placing of the party’s seal was the essence of due execution,
signature was indeed not necessary to make a deed valid. But with the
spread of education, the signature became of importance for the
authentication of documents and therefore became essential requirement by
reason of statutory provision.”
The affixing of a seal in a physical form has become unnecessary with the
passage of time even though the word seal is used.
The position in this regard is further reflected in the words of Sir David
Cairne in First National Securities v Jones:
“I am sure that many documents intended by all parties to be deeds are now
executed without any further formality than the signature opposite the
words ‘Signed, sealed and delivered’ usually in the presence of a witness
and I think it would be lamentable if the validity of documents so
executed could be successfully challenged.”
This view as to the need for a seal is further supported by the meaning of
the word “seal” as a verb.
According to the Oxford Advanced Learners Dictionary, it can mean “make
something definite.” Thus “signed, sealed and delivered” conveys the
meaning of “signed, confirmed and delivered”.
‘L.S.’ in circle
Whilst on this subject, it would not be out of place to provide an
explanation as to the characters “L.S.” in a circle. The two characters
stand for the Latin word “Locus Sigilli”. A dictionary listing refers to
this as “the place of the seal”.
Sometimes the initials L.S. are used in a copy of a document to indicate
the place where the seal was affixed in the original document. On other
occasions, the characters “L.S.” are used to serve as a substitute for the
seal and therefore meant to be symbolic.
Thus it will be seen that the word “seal” has a much broader meaning and
use than as a reference to a physical object or activity. This is in part
due to developments arising out of the manner in which documents have been
executed from time to time. |
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