Template:Counterparts capsule

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.

Away from the gripping world of land law, a “counterparts” clause is as useful as a chocolate tea-pot. Indeed: even there, all it does is sort out which, of a scrum of identical documents signed by different people, is the “original” one. This is doubtless important if you are registering leases in land registries, or whatever other grim minutiae land lawyers care about - we banking types have our own grim minutiae to obsess over so you should forgive us for not giving a tinker’s cuss about the conveyancing, or letting, of real property.

ANYWAY — if your areal of legal practice doesn’t care which of your contracts is the “original” — and seeing as, Q.E.D., they’re identical, why should you? — a counterparts clause is a waste of trees. because 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 all have to sign it won’t change a blasted thing, will it?

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 to so execute, then wouldn't you need an agreement, executed on the same piece of paper, to that effect? And since, to get that agreement, everyone is signing the same piece of paper, why don’t you have done with it and just 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 eagles insisting stating it anyway, on pain of cratering the trade? I have yet to find one.