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Finance contract: Difference between revisions
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{{ | {{def|Finance contract|/faɪˈnæns/ /ˈkɒntrækt/|n|}} | ||
Any [[contract]] the gist of which is for its parties to exchange ''large'' — like, ''really'' large — amounts of [[money]], or [[Securities|money-like things]], having readily realisable value, and the performance of which therefore generates significant [[credit risk]], should one of the parties [[Insolvency|blow up]] before it can pay everything it owes under the contract. | Any [[contract]] the gist of which is for its parties to exchange ''large'' — like, ''really'' large — amounts of [[money]], or [[Securities|money-like things]], having readily realisable value, and the performance of which therefore generates significant [[credit risk]], should one of the parties [[Insolvency|blow up]] before it can pay everything it owes under the contract. | ||
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| [[Severability]] || Claiming the illegality, invalidity or unenforceability of any provision of this Agreement does not affect the rest of its enforceability. | | [[Severability]] || Claiming the illegality, invalidity or unenforceability of any provision of this Agreement does not affect the rest of its enforceability. | ||
|| {{Severability boilerplate capsule}} | || {{Severability boilerplate capsule}} | ||
{{aligntop}} | |||
| [[Counterparts]] || Allows the contract to be signed on different bits of paper || ''No'' contract needs a counterparts clause. Not even a [[finance contract]].''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 “[[counterpart]]s;” 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. 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''. <ref>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.</ref> | |||
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-licken|chicken]]-and-[[egg]] problem here; a temporal {{t|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. | |||
{{aligntop}} | |||
| [[No oral modification]] || Prevents one of your salesguys from modifying the agreement by casual, drunken conversation in a bar || “'''[[No oral modification]]'''” is a self-contradictory stricture on an [[amendment agreement]], until 2018 understood by all to be silly fluff put in a contract to appease the lawyers and guarantee them an annuity of tedious work. But as of 2018 it is no longer, as it ought to be, a vacuous piece of legal [[flannel]] — thanks to what we impolitely consider to be an equally vacuous piece of ''legal reasoning'' by no less an eminence than Lord Sumption of the Supreme Court in {{Casenote|Rock Advertising Limited|MWB Business Exchange Centres Limited}} if one ''says'' one cannot amend a contract except in writing then one will be held to that — even if on the clear evidence the parties to the contract later agreed otherwise. | |||
This is rather like sober me being obliged to act on promises that drunk me made to a handsome ''[[rechtsanwältin]]'' during a argument about [[Schwarzschild radius of alcohol consumption|theoretical physics]] in a nasty bar in Hammersmith after the end-of-year do, which that elegant German attorney can not even remember me making, let alone wishing to see performed.<ref>I know this sounds oddly, ''verisimilitudinally'' specific, but it actually isn’t. I really did just make it up.</ref> Hold my beer. | |||
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