Counterparts: Difference between revisions

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{{boileranat|Counterparts|
{{boileranat|Counterparts|{{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.
===Do I need a counterparts clause?===
===It’s for leases, peeps.===
Is the {{t|contract}} before me a [[deed]] of lease?
{{counterparts capsule}}
:''Yes'': No, and it won’t work if you’ve got one: You all have to sign the same document.
===Are you, like, ''sure''?===
:''No'': No, and can safely sign in as many counterparts as you like.
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.  
YOU DON’T NEED A COUNTERPARTS CLAUSE.
[[File:Twins shining.jpg|450px|thumb|center|You sign first. No, you.]]
}}
The 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 the there ''will'' be a [[counterparts]] clause<ref>And a [[Contracts (Rights of Third Parties) Act 1999]] clause too,</ref> and it ''will'' be bullet-proof.


{{counterparts capsule}}
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 [[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'', you can sign in counterparts without a clause allowing you dto do so. ''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 require a counterparts clause''. How so? Well, think back to your first {{tag|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 {{t|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''.
How so? Well, think back to your first {{tag|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 {{t|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.
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.


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.  
===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 [[Legal eagles|eagles]]! Dare to know your stuff! Have no truck with this timid nonsense.


===Odd spot===
===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.
''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===
===Second odd spot===
It is well-settled that a single individual cannot grant a lease to himself: {{cite|Rye|Rye|1962|AC|496}}  
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.


{{sa}}
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