What is a Deed Poll?

It is a basic rule of Australian contract law that, save for limited exceptions, a contract cannot confer rights or impose obligations arising under it on any person except the parties to the contract. This basic rule is known as the “Doctrine of Privity” and there are several different aspects of the doctrine namely:

1. a person cannot enforce rights under a contract to which he is not a party;
2. a person who is not party to a contract cannot have contractual liabilities imposed on him by that contract; and
3. contractual remedies are designed to compensate parties to the contract, not third parties

Deed polls constitute one of the limited exceptions to the basic doctrine of privity under Australian law; they are flexible and, provided they are used carefully, can be of great assistance in capital markets and other finance type transactions.

Lets start with a little bit of history. A deed poll is a deed made by and expressing the active intention of one party only, or two or more persons who join together in expressing a common active intention of them all e.g. a deed poll by two or more guarantors whose liability is joint and several.

The name deed poll comes from the fact that historically the parchment required for such deeds had been shaved even or “polled” at the top. This was historically in contrast to an indenture (see below). The most important fact to note in relation to deed polls is that they are the act of one party only (or two or more persons acting together i.e. the joint and several guarantors example above); in essence they are one sided unilateral instruments to which there is only one party not a two sided (bilateral) instrument like a contract.

A deed poll must be distinguished from a deed inter partes and an indenture.

See next Blog deed inter-parties.