Counterparts
So sayeth Black’s Law dictionary:
- “In conveyancing. The corresponding part of an instrument; a duplicate or copy. 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.”
There are some situations where it is important that more than one copy of a document is recognised as an “original” - for tax purposes, for example, or the agreement needs to be formally registered with a land registry or some such thing. But these cases are few and far between — non-existent, indeed, when the field you are ploughing overflows with flowering ISDA Master Agreements — and the rest of the time a counterparts clause (like the one in the ISDA Master Agreement) is pure flannel, and flannel which may lead cautious counsel to insist on one wherever she can’t see one, on pain of demanding every person gets around the same table and indelibly marks the same parchment with a feather quill.
THIS IS NONSENSE.
Outside the formal requirements of execution — deeds of lease, contracts for the conveyance of land, that kind of thing — for an agreement to be enforceable you need to fall back on your first contract law lecture. You need:
Here we are talking about acceptance. Acceptance does not require the aforementioned quill, and indeed does not require signature (digital or otherwise) at all. Acceptance may be evidenced orally, by gesture, or even just by behaving in a way that is only explicable by reference the terms of the putative contract being argued about.
Signature is about evidence of that acceptance, and the fact that parties have signed and exchanged different copies of the same document is just as compelling evidence of their agreement to it than that they signed the same one.