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{{g}}Outside the arcane and stupefying word of conveyancing, a [[Counterparts and Confirmations - ISDA Provision|counterparts]] clause is a waste of trees. Let that not stop your [[legal eagle]]s insisting on one, on pain of cratering the trade altogether, of course: a fellow has to put food on the table for his younglings.
{{boiler|{{financecontractenvy}}{{image|Twins shining|jpg|}}}}{{drop|T|he remainder of the [[contract]]}} might be an absolute shower of confusions, contradictions, misconceptions, failures of [[consideration]], unenforceable half-promises, paralytic [[indemnities]], absurd [[disclaimer]]s of [[liability]] and outrageous derogations from the perfectly sensible allocations of risk vouchsafed by the [[common law]] of [[contract]], but be assured: there ''will'' be a [[counterparts]] clause and it ''will'' be bullet-proof.
===It’s for leases, peeps.===
{{counterparts capsule}}
===Are you, like, ''sure''?===
It is fun<ref>Not for long, but for about five minutes. </ref> counting the client bulletins that say “while a counterparts clause may not be strictly necessary, it ''is'' [[best practice]].” Then you realise they ''all'' say this.  


Black’s Law dictionary has the following to say on [[counterparts]]:
But it ''isn''’t best practice. It is ''stupid'' practice. It is feeble, lawyering by rote. It is not-quite-[[premium mediocre]].
:''“Where an instrument of conveyance, as a lease, is executed in parts, that is, by having several copies or duplicates made and interchangeably executed, that which is executed by the grantor is usually called the "original," and the rest are "counterparts;" although, where all the parties execute every part, this renders them all originals.


Sometimes it is important that more than one copy of a document is recognised as an “original” for [[tax]] purposes, for example, or where “the agreement” must be formally lodged with a land registry. But these cases, involving the conveyance of real estate, are rare  non-existent, indeed, when the field you are ploughing overflows with flowering {{isdama}}s, [[confidentiality agreement]]s and so on. Away from the gripping world of land law, a [[counterparts]] clause is as useful as a chocolate tea-pot.  
If you work inhouse and if any of your contract forms have counterparts clauses in them and let’s face it, they all do, don’t they? then ''you are not thinking hard enough about your job''.


[[Mediocre lawyer|Cautious counsel]] (equally useful, of course) may nonetheless insist on one, against the threat of having everyone get around the same table to mark the same parchment with a feather quill.
''Normal'' contracts — even spicy ones, like [[deed]]s<ref>See [http://www.osborneclarke.com/insights/signed-sealed-delivered-execution-of-deeds-and-documents-and-how-it-might-go-wrong/ Osborne Clarke] as authority for this.</ref> — ''do not need a counterparts clause''.  


Unless you are executing a [[deed]] ''of lease'', THIS IS NONSENSE. ''Normal'' contracts — even [[deed]]s<ref>See [http://www.osborneclarke.com/insights/signed-sealed-delivered-execution-of-deeds-and-documents-and-how-it-might-go-wrong/ Osborne Clarke] as authority for this.</ref>) ''do not require a counterparts clause''. How so? Well, think back to your first {{tag|contract}} law lecture:
How so? Well, think back to your first [[contract]] law lecture: for a contract to be effective you need an [[offer]], [[acceptance]] and [[consideration]].<ref>No, you do '''''not''''' need the [[intention to create legal relations]].</ref> “Execution”, however you manifest it, is simply ''a way of indicating [[acceptance]]''. [[Acceptance]] does not require a quill. ''It does not require a signature at all''. One may accept [[orally]], by a gesture, or even just by behaving in a way that can only really be explained by imputing your acquiescence to the terms of the [[contract]] being argued about. All one needs to do is satisfy oneself — and the court from whom you are praying aid — that your counterparty communicated [[acceptance]] ''somehow''.


For a contract to be effective you need:
A ''signature'' is simply ''[[evidence]]'' of that [[acceptance]]. Parties signing different copies of the same contract is no less compelling evidence than both signing the same one.
*[[offer]]
*[[acceptance]]
*[[consideration]]<ref>No, you do '''''not''''' need the [[intention to create legal relations]].</ref>


Execution, however you manifest it, is simply a means of indicating [[acceptance]]. [[Acceptance]] does not require a quill. It does not require a signature (digital [[or otherwise]]) at all. One may accept [[orally]], by gesture, or even just by behaving in a way that can only really be explained by imputing your acquiescence to the terms of the contract being argued about. All one needs to do is satisfy a court that your counterparty communicated [[acceptance]] somehow.
===Why do you care so much, [[JC]]?===
This is a fair question. Does a counterparts clause ''hurt'' anybody? Other than the incremental trees sacrificed to print out that extra four lines of text — and our children’s children, who will expire on a desiccated savannah we once knew as Tottenham Hale as a result — no-one. But it is the ''mediocrity''; the ''lack of gumption'', the unquestioning, ''following-everyone-else-by-rote'' that gets me.  


A signature is simply ''[[evidence]]'' of that [[acceptance]]. Parties signing different copies of the same contract is no less compelling evidence than both signing the same one.
Have some professional pride, fellow [[Legal eagles|eagles]]! Dare to know your stuff! Have no truck with this timid nonsense.


Note, also, that where formal execution requirements ''do'' require every hand to besmirch the same physical parchment, a [[counterparts]] clause won’t save you. This is [[Magic incantation|deep magic]], and no beginner’s spell will shoo it away.
===Odd spot===
''The'' Counterparts is a Canadian hardcore punk band from Hamilton, Ontario. True. We think they had trouble getting the guys together in the same room in the early days for rehearsals.
===Second odd spot===
It is well-settled that a single individual cannot grant a lease to himself: {{cite|Rye|Rye|1962|AC|496}}. This is from the “thanks for phoning it in, judges” department. You have to wonder what kind of a confused client brought that kind of case to the judiciary, let alone ''appealed'' the goddamn thing.


===Odd spot==
{{sa}}
The Counterparts is also the name of a Canadian hardcore punk band formed in 2007 in Hamilton, Ontario. True. Their gigs must be a freaking ''riot''.
 
{{seealso}}
*[[In your face]]
*[[In your face]]
*[[Counterparts and Confirmations - ISDA Provision]]
*[[Counterparts and Confirmations - ISDA Provision]]
*[https://en.wikipedia.org wiki Counterparts_(band) Those hell-raisers ''The Counterparts'', from the great lakes]
*{{gmslaprov|Counterparts}} in the {{gmsla}}
*[https://en.wikipedia.org/wiki/Counterparts_(band) Those Great Lakes hell-raisers ''The Counterparts'']
{{ref}}
{{ref}}

Latest revision as of 14:07, 14 August 2024

Boilerplate Anatomy™

From our finance contract envy™ series


JC clause suggestion

The JC’s Nutshell summary of this term has moved uptown to the subscription-only ninja tier. For the cost of ½ a weekly 🍺 you can get it here. Sign up at Substack. You can even ask questions! Ask about it here.

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The remainder of the contract might be an absolute shower of confusions, contradictions, misconceptions, failures of consideration, unenforceable half-promises, paralytic indemnities, absurd disclaimers of liability and outrageous derogations from the perfectly sensible allocations of risk vouchsafed by the common law of contract, but be assured: there will be a counterparts clause and it will be bullet-proof.

It’s for leases, peeps.

Black’s Law Dictionary has the following to say on counterparts:

“Where an instrument of conveyance, as a lease, is executed in parts, that is, by having several copies or duplicates made and interchangeably executed, that which is executed by the grantor is usually called the “original,” and the rest are “counterparts;” although, where all the parties execute every part, this renders them all originals.”

Sometimes it is important that more than one copy of a document is recognised as an “original” — for tax purposes, for example, or where “the agreement” must be formally lodged with a land registry. But these cases, involving the conveyance of real estate, are rare — non-existent, indeed, when the field you are ploughing overflows with flowering ISDA Master Agreements, confidentiality agreements and so on. If yours does — and if you are still reading, I can only assume it does, or you are otherwise at some kind of low psychological ebb — a “counterparts” clause is as useful to you as a chocolate tea-pot.

Indeed: even for land lawyers, all it does is sort out which, of a scrum of identical documents signed by different people, is the “original”. This is doubtless important if you are registering leases in land registries, or whatever other grim minutiae land lawyers care about — we banking lawyers have our own grim minutiae to obsess about, so you should forgive us for not giving a tinker’s cuss about yours, die Landadler. [1]

ANYWAY — if your area of legal speciality doesn’t care which of your contracts is the “original” — and seeing as, Q.E.D., they’re identical, why should it? — a counterparts clause is a waste of trees. If the law decrees everyone has to sign the same physical bit of paper (and no legal proposition to our knowledge does, but let’s just say), a clause on that bit of paper saying that they don’t have to, is hardly going to help.

Mark it, nuncle: there is a chicken-and-egg problem here; a temporal paradox — and you know how the JC loves those. For if your contract could only be executed on several pieces of paper if the parties agreed that, then wouldn’t you need them all to sign an agreement, saying just that, on the same piece of paper? And since, to get that agreement, they will have to sign the same piece of paper, why don’t you just have done with it and have them all sign the same copy of the blessèd contract, while you are at it?

But was there ever a logical cul-de-sac so neat, so compelling, that it stopped a legal eagle insisting on stating it anyway, on pain of cratering the trade? There are little eaglets to feed, my friends.

Are you, like, sure?

It is fun[2] counting the client bulletins that say “while a counterparts clause may not be strictly necessary, it is best practice.” Then you realise they all say this.

But it isn’t best practice. It is stupid practice. It is feeble, lawyering by rote. It is not-quite-premium mediocre.

If you work inhouse and if any of your contract forms have counterparts clauses in them — and let’s face it, they all do, don’t they? — then you are not thinking hard enough about your job.

Normal contracts — even spicy ones, like deeds[3]do not need a counterparts clause.

How so? Well, think back to your first contract law lecture: for a contract to be effective you need an offer, acceptance and consideration.[4] “Execution”, however you manifest it, is simply a way of indicating acceptance. Acceptance does not require a quill. It does not require a signature at all. One may accept orally, by a gesture, or even just by behaving in a way that can only really be explained by imputing your acquiescence to the terms of the contract being argued about. All one needs to do is satisfy oneself — and the court from whom you are praying aid — that your counterparty communicated acceptance somehow.

A signature is simply evidence of that acceptance. Parties signing different copies of the same contract is no less compelling evidence than both signing the same one.

Why do you care so much, JC?

This is a fair question. Does a counterparts clause hurt anybody? Other than the incremental trees sacrificed to print out that extra four lines of text — and our children’s children, who will expire on a desiccated savannah we once knew as Tottenham Hale as a result — no-one. But it is the mediocrity; the lack of gumption, the unquestioning, following-everyone-else-by-rote that gets me.

Have some professional pride, fellow eagles! Dare to know your stuff! Have no truck with this timid nonsense.

Odd spot

The Counterparts is a Canadian hardcore punk band from Hamilton, Ontario. True. We think they had trouble getting the guys together in the same room in the early days for rehearsals.

Second odd spot

It is well-settled that a single individual cannot grant a lease to himself: Rye v Rye [1962] AC 496. This is from the “thanks for phoning it in, judges” department. You have to wonder what kind of a confused client brought that kind of case to the judiciary, let alone appealed the goddamn thing.

See also

References

  1. The JC has great friends in the land law game, back home in New Zealand, and he doesn’t want to upset them — not that they are the easily upset types.
  2. Not for long, but for about five minutes.
  3. See Osborne Clarke as authority for this.
  4. No, you do not need the intention to create legal relations.