Execution formalities are often treated as an administrative “last step”, but in construction projects they are fundamental risk controls. Construction transactions routinely involve multiple documents (appointments, collateral warranties, novations, guarantees and side deeds) signed under tight parameters and by parties with different governance requirements. Getting execution and completion right is not an administrative afterthought: defects in execution can create enforceability risk, delay downstream delivery of collateral warranties or novations and generate post‑completion disputes about whether (and when) a deed took effect.

This insight provides practical guidance on the legal requirements for executing a Deed under the laws of England and Wales, how completion typically occurs in practice and how to manage common scenarios such as electronic signing, counterparts and hybrid (electronic and wet ink) execution. By summarising the statutory requirements and best practices, this explains how to avoid common pitfalls and ensure that deeds are executed correctly and effectively.

NOTE:Every transaction should be approached on its own facts, including the parties’ constitutions, and statutory formalities and any sector-specific requirements (for example, public bodies, NHS entities, Councils etc).

Requirements of a Deed

Construction documents are frequently structured as Deeds, particularly collateral warranties, deeds of novation, guarantees and indemnities. Deeds can be used even where consideration is uncertain and (often) because stakeholders want the additional certainty a deed brings.

A Deed must (among other requirements):

• Be in writing
• Clearly state that it is intended to be a Deed (e.g. ‘executed as a Deed’)
• Be validly executed by the signing party
• Be delivered (i.e. the signatory must intend to be bound by it)

You can view the full government guidance here.

Execution of Deeds by companies registered under the Companies Act

The formalities under the Companies Act 2006 must be observed when a company enters into a written contract or Deed governed by the laws of England and Wales. Under section 44 of the Companies Act 2006, a company may execute a Deed in one of the following ways:

By affixing its common seal (section 44(1)(a)). Where this form of execution is adopted, the common seal will normally be affixed to the Deed in the presence of the company secretary and one director, or two directors, who attest the sealing by countersigning the Deed and describing themselves by their respective offices of ‘secretary’ and ‘director’ or ‘director’ and ‘director’.

Most companies, however, have articles of association that authorise the affixing of the company seal to a Deed in the presence of people other than a director and the secretary.

By the signature on behalf of the company of either:

1. two authorised signatories (section 44(2)(a)); or
2. a director of the company in the presence of a witness who attests the director's signature (section 44(2)(b)).

The above form of execution can be used for Deeds executed on or after 6 April 2008 by virtue of section 44(2)(a) and (3) of the Companies Act 2006 where a company either has no seal or, having one, chooses not to use it.

The execution formalities in section 44 apply to any document that requires execution by a company (rather than on its behalf). While this includes Deeds (as section 46(1)(a) requires a Deed to be duly executed by a company), the scope of the section is not limited to deeds.

Execution of Deeds by individuals

Signature

To be validly executed as a Deed, each individual must sign the document. Making one’s mark on a document is treated as signing it (section 1(4) of the Law of Property (Miscellaneous Provisions) Act 1989). The signature must be on the document itself in the space provided and the words of execution must name the signatory or otherwise make clear who has signed the document. See practice guide 82: electronic signatures accepted by HM Land Registry for information on electronic signatures accepted by HM Land Registry.

Initialling attachments (such as schedules, annexes or exhibits) is a common practice used to confirm that the signatory has reviewed and agreed to the contents of those documents. However, it is important to understand that initialling does not constitute execution of the Deed itself. The legal validity of a Deed depends on proper execution, such as signing the main Deed document in accordance with statutory requirements (for example, by two authorised signatories or one director with a witness).

Attestation by a witness

Each individual must sign “in the presence of a witness who attests the signature” (section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989).

The same witness may witness each individual signature, but each signature must be separately attested, unless it is absolutely clear by express wording on the face of the attestation that the witness is witnessing both or all signatures in the presence of the named signatories.

A party to the Deed cannot witness the signature of another party to the deed (Seal v Claridge (1881) 7 QBD 516 at 519).

Delivery

The document must be “delivered as a Deed” by each person executing it or a person authorised to deliver it on their behalf (section 1(3)(b) of the Law of Property (Miscellaneous Provisions) Act 1989). Delivery requires that the person expressly or impliedly acknowledges, by words or conduct, an intention to be bound by its provisions.

Sealing requirements

Some entities (including certain public bodies) may have constitutionally driven sealing requirements or specific statutory frameworks. It is therefore essential to check the signatory’s authority and the entity’s required form of execution as a first step.

Methods of execution in practice

Wet ink signing

Wet ink execution remains common where:

• A party insists on it;
• Witnessing logistics are simpler in person; or
• Sealing is required (or preferred).

Electronic signatures (including e-signing platforms)

The Law Society guidance recognises that electronic signatures can take various forms, including but not limited to: typed names, signature images, touchscreen signing and web-based e-signing platforms. The general rule is that electronic signatures are capable of being used to execute documents (including Deeds) provided the signatory intends to authenticate the document and any required formalities are satisfied.

Counterparts: signing separate copies of the same document

Projects routinely involve multiple parties signing at pace and from different locations. Signing by counterpart allows each party to sign separate copies (“counterparts”) that together form one agreement.

As a general rule, parties should ensure that:

• Everyone signs the same final agreed form (the authoritative version);
• They use a controlled approach to dating and release; and
• They keep a clean audit trail of what was circulated for signature, what was returned and what constitutes the final executed contract.

Law firms should also ensure that a certified copy is taken of the completed contract which is stored onto the client file.

Hybrid execution (electronic and wet ink)

A common construction scenario is that some parties sign electronically and others in wet ink, particularly where for example a seal is required by one party and not the other. This can mean that there is no single, one document version bearing all signatures. This can be mitigated using the following steps:

• By circulating the completed electronic counterparts to all parties (so all parties retain an electronically signed version(s)).
• Ensuring wet ink signatories sign multiple physical counterparts and affix their seal if required, so that each party can receive a physical counterpart where needed.
• Create a composite record by printing a full copy of the contract and collating the relevant signed pages together. In a hybrid scenario, the signature pages included in the composite are typically copies of the wet-ink signature pages and the electronically signed execution pages rather than trying to physically combine “original” wet ink pages with printed electronic pages.

Completion

Even after execution, teams can still fall into completion traps. A robust completion process typically addresses:

• Authority to date and deliver – “delivery” and indicates the parties’ intention to be bound.
• Completion email/completion confirmation – in multi-party construction executions, it is common to use a completion email confirming: the final form being completed; authority to date; and distribution of counterparts/executed PDFs and or each party’s executed counterpart (PDF).

How Capsticks can help

Our construction lawyers provide expert legal advice and end-to-end tailored support for clients who are involved in delivering construction projects across both public and private sectors. If you have any questions related to this insight and how Capsticks can help, please contact Catherine Kay.

This insight was authored with the assistance of Faizaan Ahmed, Paralegal in Capsticks’ Corporate & Commercial team.