When I was a budding young lawyer-linguist, the word deed was the cause of many headaches. Though it might seem like a straight-forward enough word in English, the truth is it can be a real head-scratcher in cross-border scenarios that require translation. Translating it correctly involves understanding not just what a deed is, but also what it is not. And in this post, I will attempt to shed a little light on this problem term.
What a Deed Is Not
Deeds are often equated to contracts or agreements. But such translations are usually inadequate. Under the Common Law system, an agreement is, according to Black’s Law, “a mutual understanding between two or more persons about their relative rights and duties regarding past or future performances: a manifestation of mutual assent by two or more persons.”
Meanwhile, the word contract is defined as “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.” In theory, the difference between a contract and an agreement lies in its enforceability. In practice, however, these terms are often used interchangeably.
Deeds are similar to contracts in that they create binding obligations on a person and can be used to pass or confer legal or equitable interests in property or other rights. But while contracts require consideration, deeds do not.
What a Deed Is
According to Black’s Law, a deed is “any written instrument that is signed, sealed, and delivered and that conveys some interest in property.”
The substantial requirement of a deed, regardless of type, is that it be intended by the executing party to be the most serious indication of his or her resolve to do whatever it is he or she promised to do, whether that involves passing or conferring legal or equitable interests in property or other rights or simply affirming an agreement that passes a legal or equitable interest in property or other rights.
In order to be a deed at common law, an instrument needs to comply with a number of formalities: it must be written; it must be signed and sealed1; and it must be delivered to the counterparty. Hence, the phrase “signed, sealed and delivered.”
A Deed by Another Name
While the word deed is often translated into Spanish as “escritura” (e.g. security deed is often translated as “escritura de garantía,” accession public deed as “escritura de apertura,” etc.), it is not technically an “escritura.” This is so for the obvious reason that deeds at common law do not require the intervention of a Civil-Law or Latin Notary, but that is topic for a whole other post.
In translation, while various forms of “escritura” and even “título” or “fideicomiso” may be acceptable in context, I’m inclined toward the position that, at least in theory, if one were helping a Spanish-speaking Civil Law lawyer wrap his or her head around what a deed is, “negocio jurídico unilateral” comes far closer than “escritura,” at least for the purpose of explaining the concept.2
<<<<Note: This post was edited on 1/9/18. As a reader pointed out in the comments section, documents that are executed as deeds may vary between the US and the UK. This is also true of Australia and other English-speaking Common Law countries. To avoid confusion, the section on common types of deeds was removed, as the purpose of this post is to analyze the word deed in its broadest possible sense.>>>>
1. Though not a requirement in all types of deeds anymore, seals are characteristic of deeds and not contracts. (Crane 1915)↩
2. For a thorough analysis (in Spanish) of the differences between deeds and “escrituras,” I recommend the post listed in my bibliography below by Ruth Gámez and Fernando Cuñado.↩
Crane, Frederick E. 1915. “The Magic of the Private Seal.” Columbia Law Review 15 (1): 24-36.
Cuñado, Fernando & Gámez, Ruth. n.d. Traducción Jurídica. https://traduccionjuridica.es/que-es-un-deed-y-en-que-se-diferencia-de-nuestra-escritura/.