A deed of loan reciting that a sum has been 'lent or agreed to be lent' may, on its proper construction having regard to commercial purpose, be read as acknowledging that the sum has in fact been lent, with the words 'or agreed to be lent' treated as surplusage. Guarantors who are not parties to a deed of loan cannot contend that the deed operates differently for them than for the debtor; if the deed gives rise to a valid and enforceable debt, that is the debt that engages the guarantees. Where closing submissions address an issue not formally pleaded, the court may treat that issue as properly in issue if the parties have in substance engaged with it.
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