Formality：Contracts under seal and the requirement of writing

Question 1

Seal

Answer 1

Historically: all contracts had to be under seal for 2 reasons: (1) sufficient to show serious intent – binding (2) worked as evidential function.
Seals now are not necessary but if you have one, they displace the need for consideration. (But if you have seal, that means binding, sufficient)

Question 2

ROYAL BANK V KISKA 1967 ONCA – SEAL HAS TO BE GUMMED WAFER, THE WORD SEAL AND “SIGNED SEALED AND DELIVERED” DOES NOT COUNT

Facts * There is a guarantee in a bank and document handed over. There was no seal fixed to it but the word seal all over the place, “signed sealed and delivered” “given under seal”.
Issues/
Holding * Does this count as a seal? No

Answer 2

Rules For something to be a seal:
(1) Must physically affix something to the paper that is a gummed wafer or something analogous
(2) You must do so at the time with the intent that it operates as a seal with binding consideration
Analysis Why take such a formulistic approach: don’t have an expansive approach, the historic part is outdated, it’s an exception consideration, it’s a big deal so don’t want to expand it. Seal=sufficient binding, then no need for consideration-if no seal, still need consideration for binding.

Question 3

Certain contracts must be in writing

Answer 3

There are certain forms of contracts to be writing but no general rule, exception: interest in lands; guarantees; these two must be in writing, otherwise they are not enforceable. S.59 BC Law and Equity Act, (a) must be writing and (b)(c) two exceptions. Guarantee is almost the same thing.
S. 59 (3) A contract respecting land or a disposition of land is not enforceable unless
(a) there is, in a writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter,
(b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or
(c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the person’s position that an inequitable result, having regard to both parties’ interests, can be avoided only by enforcing the contract or disposition.