Law Commission launches 14th Programme of Law Reform: is the law of deeds fit for purpose?

Having consulted back in 2021, the Law Commission launched its 14th Programme of Law Reform on 4 September 2025 and with it a smorgasbord “of new and diverse projects to modernise and simplify the law”.  Alongside, the 17 existing projects, ten new projects have been announced; and deeds are now on the menu:

“The current law of deeds is outdated, in part due to technological developments. For example, it is not clear whether current law supports the creation of deeds which are wholly or partly defined by code. It is also necessary to consider the merits and implications of Mercury Tax Group Ltd v Her Majesty’s Commissioners of Revenue and Customs, in which Mr Justice Underhill (as he then was) referred to a document as needing to be “a discrete physical entity (whether in a single version or in a series of counterparts) at the moment of signing”. Some stakeholders argue that certain deed requirements, such as witnessing, attestation, and delivery, should be amended, replaced or removed.

This project will review the law of deeds, including consideration of:

(1) broad issues about the efficacy of deeds, including whether the concept remains fit for purpose;

(2) whether there should be amendments to the existing requirements of deeds, including witnessing, attestation, and delivery; and

(3) whether amendments to the law of deeds are required to ensure that compliance with the requirements of deeds can be facilitated by smart contracts.” 

Looking at this through the lens of corporate and commercial work that we at HLaw advise on, query why the concept of a deed is being singled out for treatment yet again.  The concept has proved adaptable through the advent of DocuSign and some other virtual signing platforms, and was heavily stress tested during the Covid years when the physical presence required by section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 was hard but seldom impossible to organise.

And the law of deeds still provides a framework under which agreements can be entered into absent consideration passing between the parties, still allows for the statute of limitations for contracts to be extended from six to 12 years from the date of the cause of action, still through the requisite formalities focuses the parties’ minds when signing important contracts, and there are yet still various other attractive features to the concept from its use in deed polls (used in the context of loan note issuances for instance) to share option plans to irrevocable undertakings and more.

In our view getting rid of all that because the concept of witnessing signatures feels a bit old fashioned is ill-conceived, if that be the intention.

The principal objections seem to be:

1. That “it is not clear whether current law supports the creation of deeds which are wholly or partly defined by code”.  Presumably this means that it’s not clear that a deed can be created if it exists only in the zeros and ones of binary code.  There may as yet be no decisions on the point, but for some years now even before Covid many corporate transactions have been completed without the executed documents ever being circulated in original form.  Any doubt as to the efficacy of electronic signatures – even in the context of deeds – was settled years ago and the position was confirmed in the Commission’s 2019 report.  There may now be a point to resolve in the context of distributed ledgers where the terms are never written out in the English language at all.  That latest announcement could have done with making that clear, reform on that point being relevant to contractual obligations entered into in those – still yet niche – circumstances.

2.  That same Web3 concern in play – presumably – when the Commission harks back to Mercury Tax (once ubiquitously referred to when closing corporate deals but – thankfully – not now nearly as much given developments in technology and market practice since) in referencing that decision a document being “a discrete physical entity (whether in a single version or in a series of counterparts) at the moment of signing”.  It’s an odd sentence: that deeds can be formed (via DocuSign and other platforms using PDFs) without the need for wet ink originals is now universally accepted.  What do they mean by “physical” then?  Presumably they are again thinking of decentralised ledgers where there is no document to point at in the real world.  That’s not a problem with the law of deeds.  That’s a problem with the law generally as it applies to digital assets and things being built in Web3.

This piece was written by Henry Humphreys, reflecting his opinions at the time of writing.  All the thoughts and commentary that HLaw publishes on this website, including those set out above, are subject to the terms and conditions of use of this website.  None of the above constitutes legal advice and is not to be relied upon.  Much of the above will no doubt fall out of date and conflict with future law and practice one day.  None of the above should be relied upon.  Always seek your own independent professional advice.

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