Commercial contracts in contrast

A commercial contract may be a deed, or an agreement.  The main difference between an agreement and a deed is that an agreement must have consideration (some form of payment) moving from one party to the other party – for example, I will transfer ownership of this house to you in return for payment of $2,500,000.00.

By contrast a deed does not have to have an exchange of promises or consideration moving from one party to the other – for example, I will hold 2,000 shares in Amaysim Australia Ltd in trust for you.

A commercial contract that is not a deed does not need to (but should!!!) be in writing, unless the law requires it, such as, with real property transactions.

A deed on the other hand must be in writing and formally executed using the magic words “Signed, Sealed and Delivered by ABC in the presence of DEF”.  The distinction between a commercial contract which is an agreement, and a deed bites when one party seeks to enforce the commercial contract or the deed.

Under the Limitations Act 2005 (WA) an enforcing party has 6 years from the date that the cause of action accrues to enforce an agreement, and 12 years to try to enforce a deed.

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