A document began by referring to ‘the under mentioned parties’ and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient note or memorandum signed by the parties to be bound within Section 4.
Held: It was not. There must be something, which can be regarded as a form of signature, which is voluntarily affixed to the document by way of authentication of it.
Lord Chelmsford C: ‘The cases on this point . . establish that the mere circumstances of the name of a party being written by himself in the body of a memorandum of agreement will not of itself constitute a signature. It must be inserted in the writing in such a manner as to have the effect of ‘authenticating the instrument’ or ‘so as to govern the whole instrument’ . . The name of the party, and its application to the whole of the instrument, can alone satisfy the requisites of a signature.
Lord Westbury said that if something was to be relied upon as a signature, it has to be: ‘ . . . so placed as to show that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument. . . It must govern every part of the instrument. It must shew that every part of the instrument emanates from the individual so signing, and that the signature was intended to have that effect. It follows that if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum. ‘
Judges:
Lord Chelmsford C, Lord Westbury
Citations:
(1867) LR 2 HL 127
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 01 May 2022; Ref: scu.241714
