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This document takes the form of a deed * and may be used by two parties in England and Wales who have previously entered into a contract together and wish to alter this contract. In other words, this document can be used where each of the parties would like to change the contract in some way. This type of agreement is often formally called a 'deed of variation'.
Purpose of this Document
The document should be used where the existing contract between the parties (the contract which is to be altered under this deed) is governed by and enforceable in the jurisdiction of England and Wales. The document has been designed in a universal format, and may therefore be used to vary a broad range of different contractual agreements. However, it is important for the parties to carefully check and consider whether they may be any further specific elements they may wish to include within this deed, particularly where the existing contract is complex in nature.
It should be noted that it is not always necessary to vary a contract via deed. It can be acceptable to document an agreed amendment in a simple written agreement or letter provided that there is consideration *. However, in some circumstances, there may not be any consideration given in exchange for the rights granted in the variation. Where it is unclear whether any consideration exists, the parties may wish to execute the variation via deed. Often, the parties will choose to do this so that there is a higher chance that the amendments can be considered binding and enforceable.
It should be noted that where the parties would like to end all obligations under the contract and to release each party from its obligations under it, a different document should be used.
Furthermore, where the parties are in dispute regarding a breach of the contract, this document will not be appropriate. Where such a dispute exists, the party alleging the breach may wish to send a formal notice to request a remedy. Where the other party fails to remedy the breach, the party may then elect to send a notice to formally terminate the contract.
It is possible to read more about these issues and the relevant methods in our legal guide about this topic.
How to use this document
The parties should carefully complete the questions with the relevant information. The existing contract between the parties should be attached to the schedule at the end of the deed at Schedule 1. The parties can choose to either describe the amendments in the deed. Alternatively, they can annotate the existing contract by striking through clauses which are to be deleted and underlining any clauses which have been added. This amended contract can then be attached at Schedule 2.
The document should then be executed as a deed. There are different ways for a deed to be executed, which will depend upon the nature of the parties involved. This document allows the document to be executed in the manners set out below.
An individual party (including a sole trader)
Where a party is an individual person, including a sole trader, the document may be executed by the signature of that party in the presence of a witness who attests their signature.
A party that is a company
Where a party is a company, there are a number of ways in which the company may execute a document as a deed. This document allows for the following two methods to be used:
a) by the signature of two authorised signatories of the company (i.e two of its directors or one director and the company secretary); or
b) by the signature of one director of the company in the presence of one witness who attests the director's signature; or
A party that is a Limited Liability Partnership
Where a party is a Limited Liability Partnership (LLP), there are a number of ways in which the LLP may execute a document as a deed. This document allows for the following two methods to be used:
a) by the signature of two of the LLP's members; or
b) by the signature of one of the LLP's members in the presence of a witness who attests the signature.
A party that is a general partnership
The general rule is that a deed must be executed by all of the partners of a general partnership. Each partner/member of the partnership should therefore sign the document in the presence of a witness who attests their signature.
A party that is a limited partnership
Where the party is a limited partnership, this document allows for the deed to be executed by the general partner of the limited partnership. However, the applicable execution formalities may vary in accordance with the legal personality of the general partner. This should therefore be checked carefully where there is any uncertainty.
Where the deed can be executed by the general partner, the general partner should sign the document in the presence of a witness who attests their signature.
In all of the above circumstances, care should be taken to ensure that the witness is suitable and is able to legally act as a witness, and that all parties are legally capable of entering into the agreement. Once the parties have executed the document, they should each retain a final signed copy. The amendments should be effective from the selected date.
The general laws of contract will apply to the existing contract and the deed terminating it.
The main legal provisions which govern the execution of deeds in England and Wales are contained in:
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