What Does A Standard Signing Clause Look Like and What Does It Apply To?

What Does A Standard Signing Clause Look Like and What Does It Apply To?

What Does A Standard Signing Clause Look Like and What Does It Apply To?

What does a standard signing clause look like and what does it apply to?

Generally

A person will be bound by the terms of an agreement they sign whether or not they have read it, and whether or not they understand its terms. So, a signing clause can be very simple. The main purpose is to prove that a person has agreed to the contract they have signed.

In most cases in business, a person is entitled to reasonably rely upon the signature of the person signing as being authorised to bind the company they work for. This is not always the case. If you are dealing with a very junior person in a business, it is unlikely they have the required authority to sign something that binds the business, but the signature of a senior manager or director should be able to be relied upon.

For the purpose of proof, the best style of basic signing clause should include:

  • the name of the person signing, in a legible form, which is why signing clause sometimes say ‘print name’ or ‘block print name’;
  • a signature
  • the date.

The reason to include a date is to easily track when the agreement was made. It is very common for signing parties to forget to enter a date on the first page of an agreement (where there is usually a space for the date) and then years later, anyone trying to work out when the document should be dated is trawling through emails and other records to try and figure it out. At least if the person signing has to also date the document, if it is missed on the first page, there will still be an easy reference within the document.

If you’ve been following our recent articles, you would probably know that although not all documents need to be signed to be legally binding, it is always a good idea to use a signature to indicate that an agreement was entered into between the parties. The signature can be a reliable form of proof of agreement.

Different types of documents have different execution requirements. (Execution in this context means the performance of something in a planned way, not the killing by legal punishment meaning.) For example, deeds have different execution requirements than agreements, and we will discuss those differences below. Other documents such as wills, powers of attorney or court documents also have different rules around proper signing.

Having an appropriate signing clause can help ensure that your document is correctly executed and is valid and enforceable.

So, what does a standard signing clause look like? Let’s start by looking at signing clauses for agreements.

Standard signing clause – agreements

A standard signing clause applies to all kinds of agreements (but not deeds). For example, services agreements, licence agreements, contractor agreements, and loan agreements.

The elements of a signing clause would need to be slightly adjusted depending on who is signing.

1. Individual

If you are signing as an individual, nothing more is required than your name and signature.

Although not legally required, it is good practice to have your signature witnessed by a third party. This is good evidence in case a dispute arises as to whether the agreement was properly signed, and particularly if the person signing argues that they did not intend to sign it.

An example signing clause would look like this:

When a signature does not need to be witnessed to be legally binding, then even though there is a section for a witness, the document will still be binding without it.

If someone signs a document without a witness, it is too late for their signature to be witnessed. A person can only witness a signature if they are present and watching as the person signs the document. We sometimes have people ask us to witness their already signed documents, and the answer is always, ‘no, we will have to reprint the page and do it again’.

2. Company

If it is your company that is executing an agreement, you should comply with the Corporations Act 2001 (Act); in particular, section 127 of the Act.

The signing clause for companies usually contains the words ‘signed on behalf of [company name] in accordance with s 127 of the Corporations Act 2001 (Cth)’.

Signing pursuant to that provision means that a person can rely upon the Corporations Act to state that the document was properly signed, however, if a document is not signed correctly in accordance with that section, it may still be binding on the company.

             a) With common seal

If your company has a common seal (which is basically an ink stamp that you can press onto an agreement as the company’s signature), that stamping must be witnessed by:

  • 2 directors of the company;
  • 1 director and 1 company secretary; or
  • the sole director and secretary of a proprietary company.

The use of a common seal is becoming less common. Most companies execute without a common seal. Companies such as registered training organisations, that provide certificates of completion for students, are the types of companies that still adopt a common seal.

             b) Without common seal

Executing without a common seal is a very similar procedure, with the only difference being you do not have to stamp the agreement with a common seal.

It simply requires the signature of:

  • 2 directors of the company;
  • 1 director and 1 company secretary; or
  • the sole director and secretary of a proprietary company.

These signatures do not need to be witnessed.

3. Trust

A trust is not a legal entity on its own and cannot execute agreements. Trustees are the ones that sign on behalf of the trust.

A trustee can be an individual or a company. The execution method is exactly the same as mentioned above, except that the signing clause would need to specify the signatory is signing in his/her/its capacity as trustee for (ATF) the trust.

If you are an individual trustee (witness is not legally required but is good practice):

If you are a corporate trustee:

4. Partnership

If you are in a partnership, you can sign an agreement on behalf of the partnership and bind the entire partnership to it.  Ideally you would have a very clear partnership agreement which identifies who is authorised to sign what type of document, rather than every person in a partnership signing without the knowledge of the other parties.

Again, witnesses are not legally required but it is good practice to have your signature witnessed by a third-party.

Signing clause for deeds

Different to an agreement, a deed will take effect from the time it is delivered (not physical delivery but where the executing party intends to be bound – ie. at the time of signing).

This is why the signing clause to a deed would need to contain the words ‘signed, sealed and delivered’.

Other than this, executing a deed is very similar to executing an agreement, with the only exception being if you are signing as an individual, you must have your signature witnessed by a person who is not a party to the deed.

There are some exceptions for signing documents under COVID legislation

It is important to also note that if you are a partner and want to sign a deed to bind the entire partnership, you must be given authority to do that under a deed (ie. partnership deed). A verbal or other type of written acknowledgement is not sufficient to give you that power. In addition, your signature must be witnessed by a person who is not a party to the deed.

To find out more about deeds, please read our article about Deeds v Agreements.

Need help?

If you need help or have questions about how to correctly sign your documents, please contact us.

COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

 *Last updated 12 July 2021*

Very few documents are legally required to have a ‘wet’ signature. That is a signature applied using pen and ink. 

Most business contracts you enter into don’t require a ‘wet’ signature and may not require a signature at all to be binding. Contracts are not formalised by a signature; a signature simply serves as good evidence that a person agreed to the contents of a contract. Some examples of documents that would normally need a wet signature are: 

  • Wills
  • powers of attorney
  • deeds
  • documents that need to be witnessed, verified or authenticated in some way
  • some court documents
  • some documents for lodgement with land titles offices
  • some governance documents, such as minutes of meetings of directors
  • some regulatory documents, depending on the regulator 

Since the introduction of electronic transactions legislation by the Australian federal government and most Australian state and territory governments around the year 2000, it has been possible to sign a lot of agreements electronically

Rules do apply. 

Broadly speaking, the requirements for using an electronic signature are:

  • you must be able to identify the person signing, either directly or through additional evidence
  • the person signing must agree to be bound by their signature
  • the method for identifying the signatory and his or her intention in the circumstances is reliable
  • all the parties agree to accept e-signatures, which agreement can be inferred by conduct 

Provided that all parties agree, a typewritten name can be used as a signature.  Consider that you may be one of many people in business who have a formal typewritten signature as a standard footer to your emails.

Case study

In Stellard’s case (Stellard Pty Ltd & anor v North Queensland Fuel Pty Ltd [2015] QSC 119) a signature was required because the transaction involved property. There requirement for a signature was in s.59 of the Queensland Property Law Act, which says “No action may be brought upon any contract for the sale… of land… unless the contract… or some memorandum or note of the contract, is in writing, and signed by the party to be charged…”

All exchanges relied upon were either via email, or by conversation. Stellard argued that they were entitled to rely on NQF’s acceptance of their offer to purchase, contained in an email, by virtue of the Queensland electronic transactions legislation. The Court decided that:

 

  • the parties agreed to accept electronic signatures through their conduct, being negotiation via email including stating the offer in the body of the email and receiving the acceptance in the body of an email
  • the identity of the person sending the email acceptance was found through evidence of conversations held earlier than the date of the email, and an admission of the sender that they were the person sending the email

What does that mean for you? 

Be aware of what you are negotiating and agreeing to by email. 

CHANGES TO 1 JULY 2021

Federal

On 23 April 2021 ASIC extended their temporary ‘no action’ position on the following activities for reporting dates up to 7 July 2021:

  • the holding of meetings using appropriate technology;•
  • electronic dispatch of notices of meeting including supplementary notices; and•
  • public companies holding AGMs within an additional 2 months on the extended term.

There is no allowance or exemption for signing documents electronically. Wet signatures are still required for minutes of meeting, although scanned copies of documents can be kept.

ACT

On 20 February 2021 The ACT Parliament extended the timeframe of relevant COVID legislation.

NSW

On 25 March 2021 NSW Parliament extended COVID timeframes under a variety of legislation with the COVID-19 Recovery Act 2021, to 31 December 2021, but excluded the Electronic Transactions legislation, which had been previously amended on 28 September 2020 by the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 until 1 January 2022.

QLD

On 14 April 2021 amending legislation was passed by QLD Parliament to extend the expiry date of various legislation impacted by COVID measures to 30 September 2021. However, the time available for electronic signing and witnessing of Wills and enduring powers of attorney ended on 1 July 2021.  

SA

Changes were made by SA Parliament in February 2021.

VIC

On 23 March 2021 Victoria led the way for all Australian jurisdictions by permanently adopting changes to the Electronic Transactions (Victoria) Act 2000, enabling witnessing of signatures by audio visual link, and the electronic creation and signing of Deeds and mortgages.

No other changes were tabled before parliaments around the country before 31 March 2021.

Signing documents during COVID-19 restrictions

After COVID-19 was declared a pandemic and Australian federal and state governments started enacting temporary legislation for greater flexibility, laws were introduced to change the way certain documents, which usually required a wet signature and a witness, could be signed using electronic means.

Changes are not consistent around Australia. Each state or territory has slightly different requirements and not every state or territory enacted relevant laws, so you do need to be conscious of the location of the person signing, and the applicable rules in that place, and when those rules will expire:

 

 

Legislation

Start Date

Expiry Date

Federal

Corporations (Coronavirus Economic Response) Determination (No. 3) 2020

5 May 2020

EXPIRED*

ACT

COVID-19 Emergency Response Act 2020

14 May 2020

12* months after COVID emergency ends

NSW

Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 adding Part 2B to the Electronic Transactions Act 2000 

28 Sep 2020

 

1 Jan 2022

NT

N/A

 

 

QLD

Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020

15 May 2020

 

EXPIRED for Wills

30 Sep 2021 for Deeds

SA

COVID-19 Emergency Response (Section 16) Regulations 2020

20 Apr 2020

later of 31 May 2021 or 28 days after COVID emergency ends

Tas

Notice under Section 17 of COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020

3 Apr 2020

EXPIRED 

Vic

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 amending Electronic Transactions Act

 

PERMANENT CHANGE

WA

COVID-19 Response and Economic Recovery Omnibus Act 2020

12 Sept 2020

31 Dec 2021

*The above table mentions only the first applicable legislation, which is likely to have been amended by further legislation over time, resulting the expiry dates listed. Expiry dates are subject to change.

Signing of corporate documents under australian federal law during covid

Federal law covers signing for and on behalf of companies, as well as the holding of shareholder or member meetings electronically. The legislation was due to expire on 5 November 2020 but was extended.

The Corporations Act is specifically excluded from electronic transactions legislation, so you will normally require a wet signature of directors or secretaries who are signing a document in accordance with s.127 of that Act. The document can still be shared electronically, it just cannot be signed electronically.

Pursuant to s.127 you would usually require two directors, a company secretary and a director or a sole director and secretary to sign on behalf of a company. You usually require both people (if two are signing) to sign the same document on behalf of the company.

The temporary legislation allows for electronic application of signatures when signing for a company, which can occur on separate documents, provided that each document contains the entire contents of the document, and a method was applied to identify each person signing and their intent to be bound, and that method was reliable.

A document signed on behalf of a company another way can still be binding. Section 127 does not limit the ways in which a company can sign a document. 

Permanent changes to the Corporations Act have now been tabled before parliament for consideration in 2021 which would allow for electronic signatures and virtual meetings.

Nothing in the legislation appears to enable the electronic signing of minutes of meetings, whether of a board or shareholders.

Signing documents in the Australian Capital Territory (ACT) or New South Wales (NSW) during covid 

Measures were introduced to allow for the witnessing and attestation of documents including affidavits, Wills, powers of attorney and health directives. Witnessing can be done by audio visual link provided that:

  • both video and audio are active
  • the witness watches the signatory sign in real time
  • the witness confirms the signing was witnessed by signing the document or a copy of it
  • the witness is reasonably satisfied that the document signed and the document witnessed are the same
  • the witness includes a statement on the document about how the document was witnessed in accordance with the ACT legislation.

To demonstrate confirmation of witnessing the original signature, that can be done by signing a full copy of the document (counterpart) as soon as possible after witnessing the original or signing a scanned copy of the document signed by the original signatory.

Signing documents in the Northern Territory (NT) during covid

Although the NT does have electronic transactions legislation, no specific amendments have been made to that legislation as a result of COVID. As a result, any documents that needed a wet signature in the NT before COVID restrictions started, still do.

Signing documents in Queensland (Qld) during covid

Queensland appears to have adopted the most complicated provisions. In Queensland, the witnessing a Will, powers of attorney, affidavit or statutory declaration can be completed by audio visual link, provided that:

  • the person witnessing is an Australian legal practitioner, justice of the peace (JP) or commissioner of declarations, notary public or other person mentioned in the regulations
  • the witness completes a certificate that is kept with the document
  • the witness sees the person sign in real time
  • the person signing signs each page of the document
  • the witness is satisfied that the signing person is making the document freely and voluntarily

Confirmation of witnessing, in addition to the required certificate, can be done by signing each page of a counterpart or scanned copy of the document signed by the original signatory, as soon as possible.

There are additional variations for affidavits and statutory declarations.

Documents other than Wills and enduring powers of attorney can also be signed electronically provided the method used to identify the signatory and their intend to be bound is reliable, in the circumstances.

Deeds can be signed electronically without a witness provided that the document is clearly identified as a deed. This applies to both individuals and companies, and for companies, where a second director or secretary is to sign, they can sign a counterpart.

Signing documents in South Australia (SA) during covid

While South Australia made amendments to make meetings by electronic means easier, rather than expanding the ability to apply electronic signatures to documents they simply expanded the categories of professional people documents could be sworn or attested in front of.

Witnessing documents by audio visual means is expressly excluded.

Some alterations were made for property related transactions in June 2020.

Signing documents in Tasmania (TAS) during COVID

Rather than specifying document, in Tasmania the legislation is focused on actions taken. So where a document requires a physical actions such as the making, taking, receiving, swearing, signing or witnessing of a document, those actions can be completed electronically, or by audio visual link provided that:

  • the witness watches the signatory sign in real time
  • the witness attests to the signing by signing the document or a copy of it
  • the witness includes a statement on the document about how the document was witnessed in accordance with the Tasmanian legislation.

Signing documents in Victoria (VIC) during COVID

Victoria expanded the categories of people who could take oaths and affidavits first, before then introducing broader measures for the use of electronic signatures. Timing is very important in Victoria. A witness must apply their signature on the same day as the person signing the document.

Witnessing is permitted by audio visual link provided that:

  • the witness watches the signatory sign in real time
  • the witness confirms the signing was witnessed by signing the document or a copy of it on the same day
  • the witness includes a statement on the document about how the document was witnessed in accordance with the Victorian regulation.

There are specific rules around attachments, counterparts and copies of documents that must be met to comply with Victorian requirements.

Under the Victorian Oaths Act a person can electronically write anything on a document, sign, initial or date it electronically under the COVID rules. There is also provision for Wills to be signed and witnessed by audio visual link, provided that the actions result in one document with all signatures and statements relevant to any signing by electronic means, and that all actions are taken on the same day.

Signing documents in Western Australia (WA) during COVID

Witnessing can be done by audio visual link provided that:

  • both video and audio are active
  • the witness watches the signatory sign in real time
  • the witness is satisfied that the document signed and the document witnessed are the same
  • the witness signs the document or a copy of it
  • the witness includes a statement on the document about how the document was witnessed in accordance with s.23 of the WA legislation.

To demonstrate confirmation of witnessing the original signature, that can be done by signing a full copy of the document (counterpart) as soon as possible after witnessing the original or signing a scanned copy of the document signed by the original signatory.

Want more information?

Where documents do need to be signed in a particular way, or witnessed, to be enforceable, then it’s important you understand the requirements that apply in the place of the person signing if you want to be able to rely on those documents in the future. 

If you need help with deeds, agreements, Wills or powers of attorney and worry about what COVID rules apply, contact us. 

Get your contracts checked by a lawyer!

Get your contracts checked by a lawyer!

Get your contracts checked by a lawyer!

Why getting a contract checked by a lawyer can save you thousands!

Today I wanted to share a quick thing with you about checking your contracts.

We’ve got a client selling an aspect of their business. They’re selling it for $230,000. So what they’re selling is not their company, they’re selling the assets of the company. Now, they came to us and said, “Is this something I should get checked by a lawyer?”

Well, it’s worth $230,000 to you. Do you want to keep that money? Do you want to protect it? Do you want to make sure the transaction goes through and you get the money? It’s going to cost them around $1,500 to get us to review the contract, check that it’s all right, suggest changes, highlight risks and protect their interests.

Do you reckon that’s worth $230,000? 

How can Onyx Legal help you?

For any agreement you want to go into that involves more money than you can afford to lose, contact us so we can prepare or run through the contract for you to help you to protect your interests and hang on to your hard earned money.