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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''. | 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''. | 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''. | ||
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. | 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. | ||
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===Section {{{{{1}}}|9(e)(ii)}} {{{{{1}}}|Confirmation}}s=== | ===Section {{{{{1}}}|9(e)(ii)}} {{{{{1}}}|Confirmation}}s=== | ||
====Trade versus confirmation: celebrity death-match==== | ====Trade versus confirmation: celebrity death-match==== | ||
{{trade | If a [[Trading|trader]] agrees one thing, and the [[confirmation]] the parties subsequently sign says another, which gives? A 15 second dealing-floor exchange on a crackly taped line, or the carefully-wrought ten page, counterpart-executed legal epistle that follows it? | ||
'''TL;DR''': The ''original oral trade prevails''. | |||
The [[confirmation]] is evidence of the [[transaction]], ''but it does not override the original [[transaction]] terms, if they are different''. | |||
That is, the binding trade may be a phone call or a bloomberg chat. (This sits kind of uneasily with that {{isdaprov|Entire Agreement}} clause, but still.) | |||
If there is a dispute about the terms of your [[confirmation]], you are going to have to pull the tapes. | |||
There are some very good reasons for this. Firstly, the original trade was done by the trader with the trading mandate. The [[confirmation]] will be punted out by some dude in [[Operations|ops]] who might not be able to read the trader’s handwriting. Ops can and will get things wrong. That is correctable on the record. The trader doesn’t “get things wrong”. If she does, you’re into [[mistake]] territory. The law on [[contractual mistake]]s is beloved by students of the law and misunderstood by everyone else. But, generally, if the trader erroneously executes a trade, and the trader’s counterparty understands it correctly, the trader, and the firm she works for, will be bound by the error. That’s not a [[contractual mistake]]. It’s just a bad trade. | |||
By contrast, a settlements and reconciliations dude who sends out a confirm which carelessly misinterprets the trade log is not making a [[contractual mistake]]: he is ''incorrectly recording the contract''. That ''wasn’t'' the trade (good or bad) that the trader did. | |||
Similarly, the reconciliations dude who sends out a confirm ''which corrects an error made by the trader'' has no mandate to make that change. The error is the trader’s. The trader should live with it, and throw herself at the mercy of the jurisprudence of [[contractual mistake]]s if need be: it is not for said reconciliations dude to pull her out of a hole. | |||
====Dare we mention ... ''[[email]]''?==== | ====Dare we mention ... ''[[email]]''?==== | ||
Note also the addition of [[e-mail]] as a means of communication to the {{2002ma}} ([[email]] not really having been a “thing” in 1992). This caused all kinds of [[fear and loathing]] among the judiciary, when asked about it, as can be seen in the frightful case of {{casenote|Greenclose|National Westminster Bank plc}}.Oh dear, oh dear, oh dear. | Note also the addition of [[e-mail]] as a means of communication to the {{2002ma}} ([[email]] not really having been a “thing” in 1992). This caused all kinds of [[fear and loathing]] among the judiciary, when asked about it, as can be seen in the frightful case of {{casenote|Greenclose|National Westminster Bank plc}}.Oh dear, oh dear, oh dear. | ||