South Australian Consolidated Acts

LAW OF PROPERTY ACT 1936 - SECT 41AA

41AA—Execution and attestation of other instruments

        (1)         A party may execute an instrument (not being a will)—

            (a)         subject to a condition that the execution is not to be effective until the party gives (personally or by an agent) some further indication of the party's intention to be bound by the instrument; or

            (b)         subject to some other condition on the fulfilment of which the execution is to become effective.

        (2)         The conditional execution of an instrument may be expressed orally, in writing, or by conduct evincing an intention that the execution should be conditional.

        (3)         Where an instrument is conditionally executed, then, subject to subsection (4) and any contrary intention that appears from the instrument—

            (a)         the execution cannot be recalled; and

            (b)         on the fulfilment of the condition, the execution takes effect—

                  (i)         from the time of execution; or

                  (ii)         if it appears from the instrument or the condition of execution that the execution is intended to take effect from some later time—from that later time.

        (4)         Where an instrument is conditionally executed and the fulfilment of the condition is within the control of the party by whom the instrument was conditionally executed, then—

            (a)         any party to the instrument may, without breach of obligation, recall execution of the instrument at any time prior to the fulfilment of the condition; and

            (b)         on the fulfilment of the condition, the execution (if not previously recalled) takes effect—

                  (i)         from the time of fulfilment of the condition; or

                  (ii)         if it appears from the instrument or the condition of execution that the execution is intended to take effect from some later time—from that later time.

        (5)         Notwithstanding subsections (3) and (4), where the conditional execution of an instrument is not expressed in the instrument itself, the party by whom the instrument was conditionally executed cannot rely on the condition to defeat the claim of—

            (a)         another party who has acted on the instrument or relied on its execution without actual notice of the condition; or

            (b)         a person claiming under any such party.

        (6)         In any legal proceedings—

            (a)         if the execution of an instrument is proved, the execution will be presumed, in the absence of proof to the contrary, to have been unconditional; and

            (b)         if it appears from an instrument or evidence external to an instrument that the instrument was executed conditionally, it will be presumed, in the absence of proof to the contrary, that the condition of execution has been fulfilled.

        (7)         The common law doctrine of escrow is abolished.