By Michael Fetter

29 January 2018

With tight time constraints, we are increasingly finding that documents and agreements have not been executed correctly.

How significant is it when parties you think have executed documents correctly haven’t? It is vital that your documents are executed correctly to avoid issues down the track.

You need to ask:

  • Who has executed the documents?
  • How do I know that the right person has done this?

Also with the unfortunate increase in fraud, execution of documents need to be carefully checked and compared to searches, against previous signatures, witnessed correctly and in most cases, identification proven – similar to a bank’s full verification procedure.

You should note that our help is required in verifying execution of documents in the following examples of scenarios:

  1. If you are Lending money and there is a Loan Agreement – If the Borrower has not executed properly or it is not the Borrower who has signed (in the case of fraud), your recovery of loan money is in jeopardy;
  2. Execution of sale contracts – Buyer and Guarantor execution needs to be verified against searches. If a Trust has purchased the property and a beneficiary has signed as Guarantor (if a trust has bought the property and beneficiaries have signed guarantees), copies of the Trust Deed need to be obtained;
  3. In regards to Guarantor execution, we are noticing more and more that people other than the Guarantor execute the Guarantee and try to establish a case of fraud if the Guarantee is contested later. The Guarantor simply says “I never signed it”. Therefore our help is required up front in this respect;
  4. Do not always think that in the Lease that the parties who have executed are actually (for example in the case of the company), directors of that tenant company. Often tenants make mistakes and the proper parties have not executed. Often more than one director is required to sign.

These are only a few examples.

With regards to dating documents, if different parties sign on different dates, there needs to be a precise execution date. We often find the same duplicate documents with different dates.

Dating the document is different from commencement dates of transactions and advance dates in loans.

The purpose of this blog is to point out how significant it is when parties you think have executed haven’t, or they have executed incorrectly and the documents which you think are enforceable may not be.

 

If you have concerns in this respect, which can range from simple execution, to Heads of Agreements, Contracts and witnessing and verification procedures, please contact a member of our Business Law Team.

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